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Home My WebLink About12-0121PH LAN HALLINAN & SCHMIEG, LLP ario J. Hanyon, Esq., Id. No.203993 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 278603 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB 7105 CORPORATE DRIVE PLANO, TX 75024 Plaintiff V. RICHARD R. EICHELBERGER JANET A. EICHELBERGER 535 3RD STREET ENOLA, PA 17025 Defendants ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM c~ ~ `~ ^ (,I 3 No. Ala-~~~ v~ ~ ~ ~. z~ a -arn CUMBERLAND COUNT~cz n~ ° o 0 . .; ZO ~ p~ ~ ~ Q ... ~~ -t ~ ~~ CIVIL ACTION -LAW COMPLAINT IN MORTGAGE FORECLOSURE File #: 278603 3.~s a are} ~ ° ~ ~ ~~~ IlySs(oy ~~ al~q to ss SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ?EUi!b o ",, cfi , I,/,;,44 7i. ^ h JM1125 AM 09: tx ?? S1'_VA ;€iA The Bank of New York Mellon vs. Richard R. Eichelberger (et al.) Case Number 2012-121 SHERIFF'S RETURN OF SERVICE 01/17/2012 05:24 PM - Ryan Burgett, Deputy Sheriff, who being duly sworn according to law, states that on January 17, 2012 at 1724 hours, he served a true copy of the within Complaint in Mortgage Foreclosure, upon the within named defendant, to wit: Richard R. Eichelberger, by making known unto himself personally, at 535 Third Street, Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing to him personally the said true and correct copy of the same. RYAN BURGETT, DEP 01/20/2012 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: Janet A. Eichelberger, but was unable to locate her in his bailiwick. He therefore returns the within Complaint in Mortgage Foreclosure as not found as to the defendant Janet A. Eichelberger. Deputies were advised Janet A. Eichelberger is deceased. SHERIFF COST: $64.00 January 20, 2012 SO ANSWERS, RON R ANDERSON, SHERIFF 7i IE ?[2 PMPi 2 1 PM 2: [3 CUMBERLAND COUNTY PENNSYLVANIA PHELAN HALLINAN & SCHMIEG, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS -THROUGH CERTIFICATES, SERIES 2006-35CB V. RICHARD R. EICHELBERGER JANET A. EICHELBERGER : COURT OF COMMON PLEAS : CIVIL DIVISION : No. 2012-121 CIVIL : CUMBERLAND COUNTY SUGGESTION OF DEATH RE: DEFENDANT JANET A. EICHELBERGER AND RELEASE OF DEFENDANT'S LIABILITY COMMONWEALTH OF PENNSYLVANIA: Plaintiff, THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS -THROUGH CERTIFICATES, SERIES 2006-35CB, by its counsel, Phelan Hallinan & Schmieg, LLP, hereby certifies that, to the best of its information and belief, the Defendant JANET A. EICHELBERGER is deceased -- date of death December 10, 2005. As the property is owned by defendants RICHARD R. EICHELBERGER and JANET A. EICHELBERGER as tenants by the entireties, upon the death of JANET A. EICHELBERGER, RICHARD R. EICHELBERGER became sole owner of the mortgaged premises as surviving tenant by the entireties. PHELAN HALLINAN & IEG, LLP Dated: By Phelan Hallinan Schmieg, LLP Attorneys For Plaintiff Printed Name: Bar Id. No: sq? Id., ii V. g)O t q 5 j n,- fil 001yoT 2nI PHELAN HALLINAN & SCHMIEG, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 fl -U?e??SANfl COUNT YL ? VANlq 2 FAQ' 21 pH 2. THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS -THROUGH CERTIFICATES, SERIES 2006-35CB V. RICHARD R. EICHELBERGER JANET A. EICHELBERGER : COURT OF COMMON PLEAS CIVIL DIVISION : No. 2012-121 CIVIL CUMBERLAND COUNTY CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Suggestion of Death Re: RICHARD R. EICHELBERGER was sent via first class mail to the following on the date listed below: RICHARD R. EICHELBERGER 535 3' STREET Enola, PA 17025 PHELAN HALLINAN & SCHMIEG, LLP Dated: t 1\4 t _ By: - --- - <]? Phelan Hallinan & Schmieg, LLP Attorneys For Plaintiff Printed Name: Bar Id. No: sQ Id, No. 80193 F?'iCt r PRO- PHELAN HALLINAN & SCHMIEG, LLP '' rNpNCTA,4 ltorney for Plaintiff Matthew Brushwood, Esq., Id. No.310592 2012 MAY 21 g' t 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza CUMBERLAND COUNTY Philadelphia, PA 19103 PENNSYLVAN'A 215-563-7000 THE BAND. OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006- 35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB VS. RICHARD R. EICHELBERGER : CUMBERLAND COUNTY : COURT OF COMMON PLEAS : CIVIL DIVISION No. 2012-121 PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Kindly enter judgment in favor of the Plaintiff and against RICHARD R. EICHELI Defendant(s) for failure to file an Answer to Plaintiff s Complaint within 20 days from service thereof and for foreclosure and sale of the mortgaged premises, and assess Plaintiff's damages as follows: As set forth in Complaint $106,315.27 TOTAL $106,315.27 I hereby certify that (1) the Defendant's last known address is 535 3RD STREET, ENOLA, PA 17025, and (2) that notice has been given in rrth Rule Pa.R.C.P 237.1. Date a wood, Esquire At rgLey-for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: S eta tlxa _ x - 400000 304 3 PHS # 278603 PROTHONOTARY Qm' ak4.S4 ?a*? % &I 13 N°hu 278603 PHELAN HALLINAN & SCHMIEG, LLP Matthew Brushwood, Esq., Id. No.310592 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2006-35CB VS. RICHARD R. EICHELBERGER Attorney for Plaintiff : CUMBERLAND COUNTY : COURT OF COMMON PLEAS : CIVIL DIVISION : No. 2012-121 AFFIDAVIT OF NON-MILITARY SERVICE The undersigned attorney hereby verifies that he/she is the attorney for the Plaintiff in the above-captioned matter, and that on information and belief, he/she has knowledge of the following facts, to wit: (a) that the defendant(s) is/are not in the Military or Naval Service of the United States or its Allies, or otherwise within the provisions of the Servicemembers Civil Relief Act of Congress of 1940, as amended. (b) that defendant RICHARD R. EICHELBERGER is over 18 years of age and resides at 535 3RD STREET, ENOLA, PA 17025. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. _?--) lei Date Esquire for Plaintiff 278603 (Rule of Civil Procedure No. 236) - Revised THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006- 35C2, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB : CUMBERLAND COUNTY : COURT OF COMMON PLEAS : CIVIL DIVISION : No. 2012-121 VS. RICHARD R. EICHELBERGER Notice is given that a Judgment in the above captioned matter has been entered against you on By: If you have any questions concerning this matter please contact: Phelan Hallinan & Schmieg, LLP Matthew Brushwood, Esquire Attorney for Plaintiff 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 ** THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BEANATTEMPT TO COLLECTA DEBT, BUT ONLY ENFORCEMENT OFA LIENAGAINST PROPERTY. ** 278603 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff V. RICHARD R. EICHELBERGER Defendant(s) TO: RICHARD R. EICHELBERGER 535 3RD STREET ENOLA, PA 17025 DATE OF NOTICE: COURT OF COMMON PLEAS CIVIL DIVISION NO. 2012-121 CUMBERLAND COUNTY THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY. 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. Office of the Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 (717) 240-6195 PHS # 278603 CUMBERLAND COUNTY BAR ASSOCIATION CUMBERLAND COUNTY COURTHOUSE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 By: AnOw ood, Esquire A r Plaintiff Phelan Hallinan & Schmieg, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 r ~~ -' Phelan Hallinan & Schmieg, LL~'`~ ~~ ~~~ ~~~~ NQNd~A~~~Y 1617 JFK Boulevard, Suite 141)O,~Q,2 ~~~ (~ ~~ ~~: 34 One Penn Center Plaza Phihuldphia, PA 19103 ~~ ~„A.~~1 Cfl~1NTY 215-563-7000 ~~~~'~~ YL.V1~N1 ~- Attorney For PlaintiS -_ THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff Court of Common Pleas I Civil Division ~ CUMBERLAND County (No.2012-121 vs RICHARD R. EICHELBERGER Defendant SUGGESTION OF RaECORA CHANGE RE: PROPERTY ADDRESS IN DUCKET TO THE PROTHONOTARY: Property Address was erroneously listed on the docket as: 535 3RD STREET, ENOLA, PA 17025 The correct Property Address is: 1535 3RD STREET F/K/A 535 3RD STREET, ENOLA, PA 17025 Kindly change the information on the docket. Date: / PHEL IN & CHNIlEG, LLP By: An . Marie ,Esq., Id. N 314 Attorney for Plaintiff PHS # 278603 w r _ Phelan Hallman & Schmieg, LLP 1617 3FK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff Attorney For Plaintiff Court of Common Pleas Civil Division CUMBERLAND County No. 2012-121 vs RICHARD R EICHELBERGER Defendant CERTIFICATION OF SERVICE I hereby certify true and correct copies of the foregoing Plaintiff s Praecipe was served by regular mail to the person(s) on the date listed below: RICHARD R. EICHELBERGER 1535 3RD STREET F/K/A 535 3RD STREET ENOLA, PA 17025 Date: / By: And are , Es d. No.31 4 Attorney for Plaintiff PHS # 278603 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) NO. 12-121 Civil CIVIL ACTION -LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff (s) From RICHARD R. EICHELBERGER (1) You are directed to levy upon the property of the defendant (s)and to sell SEE LEGAL DESCRIPTION . (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due: $106,315.27 L.L.: $.50 Interest FROM 5/22/2012 TO DATE OF SALE ($17.48 PER DIEM) - $3,461.04 Atty's Comm: % Due Prothy: $2.25 Atty Paid: $2]5.25 Other Costs: Plaintiff Paid: Date: 8/16/2012 ..~ ~ ~-~ '~ David D. Buell, Prothono (Seal) Deputy REQUESTING PARTY: Name: ANDREW J. MARLEY, ESQUIRE Address: PHELAN HALLINAN & SCHMIEG, LLP 1617 JFK BOULEVARD, SUITE 1400 PHILADELPHIA, PA 19103 Attorney for: PLAINTIFF Telephone: 215-563-7000 Supreme Court ID No. 312314 PRAECIPE FOR WRIT OF EXECUTION-(MORTGAGE FORECLOSURE) P.R.C.P. 3180-3183 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff v RICHARD R. EICHELBERGER Defendant(s) To the Prothonotary: Issue writ of execution in the above matter: Amount Due Interest from 05/22/2012 to Date of Sale ($17.48 per diem) TOTAL Note: Please attach description of property. PHS # 278603 ~~ ~ a g- ~~ ~l f', D Ip°3.~5 u.• 1(p, sp a~~ ~~ ~~ a'SaS1~a~1 a~ COURT OF CIVIL DIVISION NO.: 2012-121 CUMBERLAND $106,315.27 3 461.04 :-> G ~~° ~r- -<~' G 7o't~ ~~+ '""` C PLEAS F. , r.,a "'s' r.s GG'~ _ crr cr- ,~ -~ ; 3 ~~ ~,, ~:~ G'7 ~.. c.,a cn _. $109,776.31 ~'2 -e .-c P allinan & hmieg, L Andrew J. Marley, Esq., Id. No 2314 Attorney for Plaintiff saws ~ G. ~ Sow /1 ~~ I af(bnlo l~~* a ~ q uoy ~,~+ LEGAL DESCRIPTION ALL that certain piece of ground known as Lot No. 36 in H.R. Mays, Second Addition to East Pennsboro Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at southwest corner of Lot of H.R May and Third Street; thence in a northeastern course l Of feet 6 inches to Alley; thence in a southeastern course along alley, 30 feet to lot of Reme Keys; thence in a southwestern course along lot of said Reme Keys, 109 feet to Third Street; thence in a northwestern course along Third Street 30 feet to the place of BEGINNING. TITLE TO SAID PREMISES Vested by Warranty Deed, dated 08/30/1985, given by Roger L. Sutton and Nora M. Sutton, his wife to Richard R. Eichelberger and Janet A. Eichelberger, his wife, their heirs and assigns, as tenants by the entireties and recorded 9/6/1985 in Book L-31 Page 885 By virtue of the death of Janet A. Eichelberger on 12/10/2005, Richard R. Eichelberger the sole owner of the premises as surviving joint tenant with the right of survivorship. PREMISES BEING: 1535 3RD STREET F/K/A 535 3RD STREET, ENOLA, PA 17025 PARCEL NO.45-16-1050-142 PHELAN HALLINAN & SCHMIEG, LLP Andrew J. Marley, Esq., Id. No.312314 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 ~~ i!_k~-~f t° !Gt ~: ~.~IE ~i~OTHQ~iOTA'; 20l2 AIIG 16 APB ~~~ 36 ~`JM~EF2Lq~~ CflUN1Y THE BANK OF NEW YORK MELLON FKA T~~~~EW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006- 35CB Plaintiff v. RICHARD R. EICHELBERGER Defendant(s) CERTIFICATION Attorneys for Plaintiff COURT OF CIVIL DIVISION NO.: 2012-121 CUMBERLAND CO The undersigned attorney hereby states that he/she is the attorney for the Plaintiff in the above matter and that the premises are not subject to the provisions of Act 91 because: ( ) the mortgage is an FHA Mortgage ( ) the premises is non-owner occupied ( ) the premises is vacant ( ) Act 91 procedures have been fulfilled (X) Act 91 is Not Applicable pursuant to Pa Bulletin, Doc No 11-1197, 41 Pa.B. 3 This certification is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn authorities. ay: P n a man & Sc mieg, L Andrew J. Marley, Esq., Id. N .12314 Attorney for Plaintiff PLEAS to THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CER~'IFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff v. RICHARD R. EICHELBERGER Defendant(s) COURT OF COMMON PLEAS CIVIL DIVISION NO.: 2012-121 CUMBERLAND CO PHS # 278603 AFFIDAVIT PURSUANT TO RULE 3129.1 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERSOWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROL CERTIFICATES, SERIES 2006-35CB, Plaintiff in the above action, by the undersigned attorney, sets foth as of the date the F for the Writ of Execution was filed, the following information concerning the real property located at 1535 3RD STRS~T F~/~ 3RD STREET, ENOLA, PA 17025. ~ ,:, 1. Name and address of Owner(s) or reputed Owner(s): ~ ~ ~ Name Address (if address cannot be reasonably ~ ~, o~ ascertained, please so indicate) t.... ~ RICHARD R EICHELBERGER 1535 3RD STREET F/K/A 535 3RD STREET Z p ~ ENOLA, PA 17025 ~.C ~ ~ 2. Name and address of Defendant(s) in the judgment: "`~ cr- Name Address (if address cannot be reasonably ascertained, please so indicate) SAME AS ABOVE Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be Name Address (if address cannot be reasonably ascertained, please indicate) None. 4. Name and address of last recorded holder of every mortgage of record: Name Address (if address cannot be reasonably ascertained, please indicate) COUNTRYWIDE BANK, NA 1199 N FAIRFAX ST SUITE 500 ALEXANDRIA, VA 22314 COUNTRYWIDE BANK, NA C/O CHICAGO TITLE COUNTRYWIDE BANK, NA C/O COUNTRYWIDE HOME LOANS, INC. SERVICELINK DIVISION 4000 INDUSTRIAL BLVD ALIQUIPPA, PA 15001 ATTN: CAROLYN LANZEY 4070 BUTLER PIKE #200 PLYMOUTH MEETING, PA 19462 MERS, AS NOMINEE FOR COUNTRYWIDE P.O. BOX 2026 BANK, NA FLINT, MI 48501-2026 MERS, INC. FORMERLY 3300 SW 34TH AVE, STE 101 OCALA FL 34474 AS OF 12/6/10, 1901 E. VOORHEES STREET, SUITE C DANVILLE, IL 61834 rn _~{,, --{ c~ ~~ ca -~ ~;~:; C3 r,' 5. Name and address of every other person who has any record lien on the property: Name Address (if address cannot be reasonably ascertained, please indicate) None. 6. Name and address of every other person who has any record interest in the property and whose interest may be sale. Name Address (if address cannot be reasonably ascertained, please indicate) None. 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property be affected by the sale: Name Address (if address cannot be reasonably ascertained, please indicate) TENANT/OCCUPANT 1535 3RD STREET F/K/A 535 3RD STREET ENOLA, PA 17025 COMMONWEALTH OF PENNSYLVANIA BUREAU OF INDIVIDUAL TAXES INHERITANCE TAX DIVISION 6TH FLOOR, STRAWBERRY SQ. DEPT 280601 HARRISBURG, PA 17128 DEPARTMENT OF PUBLIC WELFARE, TPL P.O. BOX 8486 CASUALTY UNIT, ESTATE RECOVERY WILLOW OAK BUILDING PROGRAM HARRISBURG, PA 17105 MERS, AS NOMINEE FOR REAL TIME RESOLUTIONS, INC. REAL TIME RESOLUTIONS, INC. DOMESTIC RELATIONS OF CUMBERLAND COUNTY COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF WELFARE P.O. BOX 2026 FLINT, MI 48501-2026 1349 EMPIRE CENTRAL DR, STE 150 DALLAS, TX 75247-4029 13 NORTH HANOVER STREET CARLISLE, PA 17013 P.O. BOX 2675 HARRISBURG, PA 17105 INTERNAL REVENUE SERVICE ADVISORY 1000 LIBERTY AVENUE ROOM 704 PITTSBURGH, PA 15222 U.S. DEPARTMENT OF JiJSTICE U.S. ATTORNEY FOR THE MIDDLE DISTRICT OF PA FEDERAL BUILDING 228 WALNUT STREET, SUITE 220 PO BOX 11754 HARRISBURG, PA 17108-1754 I verify that the statements made in this affidavit aze true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein aze made subject to the of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to auth ' ies. Date: ~~ By: P6 i n Schmieg, LLP Andrew J. Marley, Esq., Id. No.312314 Attorney for Plaintiff by the may THE BANK OF NEW YORK MELLON FKA THE BANK OF COURT OF COMMON PEAS NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE CIVIL DIVISION LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB NO.: 2012-121 Plaintiff CUMBERLAND COUNT vs. t 3 ~~.. RICHARD R. EICHELBERGER ..off N ..;.; Defendant(s) +~~ c '~s=; -- ~ ~~ -' ~ NOTICE OF SHERIFF'S SALE OF REAL PROPERTY <~ a c~->-:-a z o ~ o ~~, TO: RICHARD R. EICHELBERGER v ~ ~ ~~ 1535 3RD STREET --: cr+ F/K/A 535 3RD STREET ENOLA, PA 17025 **THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OB AWED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKR CY, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT O Y ENFORCEMENT OF A LIEN AGAINST PROPERTY.** Your house (real estate) at 1535 3RD STREET F/K/A 535 3RD STREET, ENOLA, PA 17025 i scheduled to be sold at the Sheriff's Sale on 12/05/2012 at 10:0(1 AM in the Cumberland County Courth use, South Hanover Street, Carlisle, PA 17013 to enforce the court judgment of $106,315.27 obtained by T BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTG GE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB (the mortgagee) against you. In the event t e sale is continued, an announcement will be made at said sale in compliance with Pa.R.C.P. Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriffls Sale, you must take immediate action: 1. The sale will be canceled if you pay to the mortgagee the back payments, late charges, costs reasonable attorney's fees due. To find out how much you must pay, you may call: 215-563-7000 g12 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the j if the judgment was improperly entered. You may also ask the Court to postpone the sale for good c~ 3. You may also be able to stop the sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance ydu will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTIS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriff s Sale is not stopped, your property will be sold to the highest bidder. You may find o~t the price bid by calling 215-563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate co pared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find o t if this has happened, you may ca11215-563-7000. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the propert as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A proposed schedule o distribution of the money bid for your house will be prepared by the Sheriff not later than thirty (30) da s after the sale. The schedule shall be kept on file with the sheriff and will be made available for inspection in 's office. This schedule will state who will be receiving that money. The money will be paid out in accor ance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the filing of the proposed schedule. 7. You may also have other rights and defenses, or ways of getting your home back, if you act after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HA A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BE O TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION CUMBERLAND COUNTY COURTHOUSE 2 LIBERTY AVENUE CARLISLE, PA 17013 (71'n 249-3166 (800) 990-9108 LEGAL DESCRIPTION ALL that certain piece of ground known as Lot No. 36 in H.R. Mays, Second Addition to East Pennsboro Township, Cumberland County, Pennsylvania, bounded and described as follows: BEGINNING at southwest comer of Lot of H.R. May and Third Street; thence in a northeastern course 108 feet 6 inches to Alley; thence in a southeastern course along alley, 30 feet to lot of Reme Keys; thence in a southwestern course along lot of said Reme Keys, 109 feet to Third Street; thence in a northwestern course along Third Street 30 feet to the place of BEGINNING. TITLE TO SAID PREMISES Vested by Warranty Deed, dated 08/30/1985, given by Roger L. Sutton and Nora M. Sutton, his wife to Richard R. Eichelberger and Janet A. Eichelberger, his wife, their heirs and assigns, as tenants by the entireties and recorded 9/6/1985 in Book L-31 Page 885 By virtue of the death of Janet A. Eichelberger on 12/10/2005, Richard R. Eichelberger became the sole owner of the premises as surviving joint tenant with the right of survivorship. PREMISES BEING: 1535 3RD STREET F/K/A 535 3RD STREET, ENOLA, PA 17025 PARCEL NO.45-16-1050-142 SHORT DESCRIPTION By virtue of a Writ of Execution N0.2012-121 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB vs. RICHARD R. EICHELBERGER owner(s) of property situate in the TOWNSHIP OF EAST PENNSBORO, Cumberland County, Pennsylvania, being (Municipality) 1535 3RD STREET F/K/A 535 3RD STREET, ENOLA, PA 17025 Parcel No. 45-16-1050-142 (Acreage or street address) Improvements thereon: RESIDENTIAL DWELLING JUDGMENT AMOUNT: $106,315.27 Phelan Hallinan & Schmieg, LLP Attorney for Plaintiff 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 215-563-7000 Tiff PRoTHON6TAR Phelan Hallinan & Schmieg, LLP 2g 12 OCT IS AM 9: 09 Matthew Brushwood, Esq., Id. No.310592 AT ?QEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 1400 U1,G RLAND ° ` One Penn Center Plaza PENNSYLVANIA Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff V. RICHARD R. EICHELBERGER Defendant Court of Common Pleas Civil Division CUMBERLAND County No.: 2012-121 PLAINTIFF'S MOTION TO REASSESS DAMAGES Plaintiff, by its Attorneys, Phelan Hallinan & Schmieg, LLP, moves the Court to direct the Prothonotary to amend the judgment in this matter, and in support thereof avers the following: 1. Plaintiff commenced this foreclosure action by filing a Complaint on January 12, 2012. 2. Judgment was entered on May 21, 2012 in the amount of $106,315.27. A true and correct copy of the praecipe for judgment is attached hereto, made part hereof, and marked as Exhibit "A". 3. Pursuant to Pennsylvania Rule of Civil Procedure 1037(b)(1), a default judgment containing a dollar amount must be entered for the amount claimed in the complaint and any item which can be calculated from the complaint, i.e. bringing the interest current. However, new items cannot be added at the time of entry of the judgment. 278603 . 4. The Property is listed for Sheriffs Sale on December 5, 2012. Additional sums have been incurred or expended on Defendant's behalf since the Complaint was filed and Defendant has been given credit for any payments that have been made since the judgment. The amount of damages should now read as follows: Principal Balance $89,550.00 Interest Through December 5, 2012 $20,334.83 Legal fees $1,675.00 Cost of Suit and Title $378.75 Property Inspections $255.00 Escrow Deficit $4,119.11 TOTAL $116,312.69 6. The judgment formerly entered is insufficient to satisfy the amounts due on the Mortgage. 7. Under the terms of the Mortgage and Pennsylvania law, Plaintiff is entitled to inclusion of the figures set forth above in the amount of judgment against the Defendant. 8. Plaintiff's foreclosure judgment is in rem only and does not include personal liability, as addressed in Plaintiffs attached brief. 9. In accordance with Cumberland County Local Rule 208.3(9), Plaintiff sent a copy of its proposed Motion to Reassess Damages and Order to the Defendant on October 5, 2012 and requested the Defendant's Concurrence. Plaintiff did not receive any response from the Defendant. A true and correct copy of Plaintiff s letter pursuant to Local Rule 208.3(9) and certification of mailing are attached hereto, made part hereof, and marked as Exhibit "B". 10. No judge has previously entered a ruling in this case. 278603 WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. Ph i & Schmieg, LLP DATE: By: If it _ kl?< - 91 a w Brush ood, Esquire ATTORN OR PLAINTIFF 278603 Phelan Hallinan & Schmieg, LLP Matthew Brushwood, Esq., Id. No.310592 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff V. RICHARD R. EICHELBERGER Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No.: 2012-121 MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES I. BACKGROUND OF CASE RICHARD R. EICHELBERGER executed a Promissory Note agreeing to pay principal, interest, late charges, real estate taxes, hazard insurance premiums, and mortgage insurance premiums as these sums became due. Plaintiffs Note was secured by a Mortgage on the Property located at 1535 3RD STREET, F/K/A 535 3RD STREET, ENOLA, PA 17025. The Mortgage, indicates that in the event of a default in the mortgage, Plaintiff may advance any necessary sums, including taxes, insurance, and other items, in order to protect the security of the Mortgage. In the instant case, Defendant defaulted under the Mortgage by failing to tender numerous, promised monthly mortgage payments. Accordingly, after it was clear that the default would not be 278603 cured, Plaintiff commenced the instant mortgage foreclosure action. Judgment was subsequently entered by the Court, and the Property is currently scheduled for Sheriffs Sale. Because of the excessive period of time between the initiation of the mortgage foreclosure action, the entry of judgment and the Sheriffs Sale date, damages as previously assessed are outdated and need to be adjusted to include current interest, real estate taxes, insurance premiums, costs of collection, and other expenses which Plaintiff has been obligated to pay under the Mortgage in order to protect its interests. It is also appropriate to give Defendant credit for monthly payments tendered through bankruptcy, if any. IL LEGAL ARGUMENT TO AMEND PLAINTIFF'S IN REM JUDGMENT It is settled law in Pennsylvania that the Court may exercise its equitable powers to control the enforcement of a judgment and to grant any relief until that judgment is satisfied. 20 P.L.E., Judgments § 191. Stephenson v. Butts, 187 Pa.Super. 55, 59, 142 A.2d 319, 321 (1958). Chase Home Mortg_ e Corporation of the Southwest v. Good, 537 A.2d 22, 24 (Pa.Super. 1988). The Pennsylvania Superior Court has repeatedly cited the right of a foreclosing creditor to amend its judgment prior to the Sheriff s sale. Nationsbanc Mortgage Corp. v. Grillo, 827 A.2d 489 (Pa.Super. 2003). Morgan Guaranty Trust Co. of N.Y. v. Mowl, 705 A.2d 923 (Pa. Super. 1998). Union National Bank of Pittsburgh v. Ciongoli, 407 Pa.Super. 171, 595 A.2d 179 (1991). The Supreme Court of Pennsylvania recognized in Landau v. Western Pa. Nat. Bank 445 Pa. 117, 282 A.2d 335 (1971), that the debt owed on a Mortgage is subject to change and, in fact, can be expected to change from day to day because the bank must advance sums in order to protect its collateral. Because a Mortgage lien is not extinguished until the debt is paid, Plaintiff must protect its collateral up until the date of sale. Beckman v. Altoona Trust Co., 332 Pa. 545, 2 A.2d 278603 826( 1939). Because a judgment in mortgage foreclosure is strictly in rem, it is critical that the judgment reflect those amounts expended by the Plaintiff in protecting the property. Meco Reality Company v. Burns, 414 Pa. 495, 200 A.2d 335 (1971). Plaintiff submits that if it goes to sale without the requested amended judgment, and if there is competitive bidding for the Property, Plaintiff will suffer a significant loss in that it would not be able to recoup monies it advanced to protect its interests. Conversely, amending the in rem judgment will not be detrimental to Defendant as it imputes no personal liability. In B.C.Y. v. Bukovich, the Pennsylvania Superior Court reiterated its long standing rule that a Court has the inherent power to correct a judgment to conform to the facts of a case. 257 Pa. Super. 157, 390 A.2d 276 (1978). In the within case, the amount of the original judgment does not adequately reflect the additional sums due on the Mortgage due to Defendant's failure to tender payments during the foreclosure proceeding and the advances made by the mortgage company. The Mortgage plainly requires the mortgagor to tender to the mortgagee monthly payments of principal and interest until the Promissory Note accompanying the Mortgage is paid in full. The mortgagor is also required to remit to the mortgagee sufficient sums to pay monthly mortgage insurance premiums, fire insurance premiums, taxes and other assessments relating to the Property. The mortgagor has breached the terms of the Mortgage, and Plaintiff has been forced to incur significant unjust financial losses on this loan. III. THE FORECLOSURE JUDGMENT IS IN REM ONLY The within case is a mortgage foreclosure action, the sole purpose of which is to take the mortgaged property to Sheriffs Sale. Pennsylvania law makes clear that an action in mortgage foreclosure is strictly in rem and does not include any personal liability. Newtown Village 278603 Partnership v. Kimmel, 424 Pa. Super 53, 55, 621 A.2d 1036, 1037 (1993). Signal Consumer Discount Company v. Babuscio, 257 Pa. Super 101, 109, 390 A.2d 266, 270 (1978). Pennsylvania Rule of Civil Procedure 1141(a). However, Pennsylvania law requires that the foreclosure action demand judgment for the amount due. Pa.R.C.P. 1147(6). The purpose of the dollar amount in the in rem judgment is for bidding at the Sheriffs Sale. In the event that a third party real estate speculator were to bid on the mortgaged property at the Sheriffs Sale and become the successful purchaser, Plaintiff would receive the amount of the in rem judgment from the Sheriff. IV. ]INTEREST The Mortgage clearly requires that the Defendant shall promptly pay when due the principal and interest due on the outstanding debt. In addition, the Note specifies the rate of interest to be charged until the debt is paid in full or otherwise satisfied. Specifically, interest from 30 days prior to the date of default through the date of the impending Sheriff s sale has been requested. V. 'TAXES AND INSURANCE If Plaintiff had not advanced monies for taxes and insurance throughout the foreclosure proceeding, Plaintiff would have risked loss of its collateral. If the Property were sold at a tax sale, Plaintiffs interest very well may be divested, and Plaintiff would sustain a complete loss on the outstanding balance due on the loan. If the Property were damaged in a fire, Plaintiff would not be able to obtain insurance proceeds to restore the Property if it did not pay the insurance premiums. 278603 Most importantly, the Mortgage specifically provides that the mortgagee may advance the monies for taxes and insurance and charge these payments against the escrow account. Plaintiff is simply seeking to have the Court enforce the terms of the Mortgage. VI. ATTORNEY'S FEES The Plaintiffs foreclosure fees are very modest. They cover all of the legal work done throughout the course of the foreclosure action to date, including reviewing the Act 6 or Act 91 letters, loan documents, account records, title reports and supporting documents, preparing and reviewing the mortgage foreclosure complaint, filing and service of the complaint, Rule 237.1 Notice, Department of Defense search, entry of judgment, the writ of execution process, lien holder notices, and all of the other legal work that goes into handling the mortgage foreclosure lawsuit. The Mortgage specifically provides for Plaintiff s recovery of its attorney fees. The amount of attorney's fees requested in the Motion to Reassess Damages is in accordance with the loan documents and Pennsylvania law. Pennsylvania Courts have long and repeatedly concluded that a request of five percent of the outstanding principal balance is reasonable and enforceable as an attorney's fee. Robinson v. Loomis, 51 Pa. 78 (1865); First Federal Savings and Loan Association v. Street Road Shopping Center, 68 D&C 2d 751, 755 (1974). In Federal Land Bank of Baltimore v. Fewer, the Superior Court held that an attorney's fee of ten percent of the original mortgage amount is not unconscionable. 410 A.2d 344 (Pa. Super. 1979). The Superior Court cited Fewer in confirming that an attorney's fee of ten percent included in the judgment in mortgage foreclosure action was reasonable. Citicorp v. Morrisville Hampton 278603 Real , 662 A.2d 1120 (Pa. Super. 1995). Plaintiff's legal fees are not a percentage but are significantly less than what is permitted by Pennsylvania law. VII. COST OF SUIT AND TITLE Pursuant to the terms of the mortgage, Plaintiff is entitled to recover all expenses incurred in the foreclosure action. The amount claimed for the costs of suit and title are the expenses Plaintiff paid to date as a result of the mortgage default. The title report is necessary to determine the record owners of the property, as Pa.R.C.P. 1144 requires all record owners to be named as Defendants in the foreclosure action. It is also necessary to determine whether there are any prior liens to be cleared, so that the Sheriff's sale purchaser acquires clear title to the property. It is necessary to determine if there are IRS liens on the property, whether the Defendants are divorced (which could affect service of the complaint), and numerous other legal issues. The title bringdown is necessary to identify any new liens on the property or new owners between the time of filing and complaint and the writ date. The Freedom of Information Act inquiries and the investigation into Defendants' whereabouts are necessary to effectively attempt personal service of the complaint and notice of sale on the Defendant. The notice of sale and Rule 3129 notice are required by Pa.R.C.P.3129.1 and 3129.2 to notify all lienholders, owners, and interested persons of the Sheriff's sale date, as their interests will be divested by the Sheriff's sale. Accordingly, the modest sums Plaintiff has incurred for the costs of suit and title were necessary pursuant to Pennsylvania law. The amounts were reasonable and actually incurred. The mortgage and Pennsylvania law permit Plaintiff to recover these sums through its 278603 foreclosure action. As the foreclosure action is in rem only, Plaintiff recovers its judgment from the sale of the property, not out of the Defendant's pockets. Plaintiff should recover the costs of suit and title in their entirety, which will not cause harm to the Defendants. VIII. PROPERTY INSPECTIONS AND PRESERVATION The terms of the mortgage provide for property inspections and property preservation charges. The lender or its agent may make reasonable inspections of the property pursuant to the terms of the mortgage. When a borrower defaults under the terms of the mortgage, the lender may do, or pay for, whatever is reasonable to protect its interest in the collateral, including property maintenance. Any amounts disbursed by the lender for property inspections and preservation become additional debt of the borrower secured by the mortgage. The lender may charge the borrower for services performed in connection with the default, for the purpose of protecting the lender's interest in the property, including property inspections and valuation costs. When a loan is in default, the lender's risk increases. Mortgage companies typically have a vendor visit the premises to determine if any windows need to be boarded up, if the property is vacant, if the grass needs to be cut, or the snow shoveled. If the property inspection reveals any problems at the mortgaged premises, then the mortgage company may proceed to take whatever steps are necessary to secure the collateral, such as boarding windows, winterizing, removing hazards or debris, etc. The mortgage company generally pays a vendor to handle these tasks, which are referred to in the industry as "property preservation". These services avoid code violations and avoid the property becoming an eyesore in the neighborhood. Property preservation helps maintain property values in the neighborhood. 278603 Accordingly, line items included in Motions to Reassess Damages for property inspections and property preservation represent amounts which the mortgage company has paid out of its pocket to preserve its collateral, consistent with the terms of the mortgage contract. Since the terms of the mortgage provide that such expenses by the mortgage company become part of the borrower's debt secured by the mortgage, those expenses are properly included in the Plaintiff's Motion to Reassess Damages. IX. CONCLUSION Therefore, Plaintiff respectfully submits that if the enforcement of its rights is delayed by legal proceedings, and such delays require the mortgagee to expend additional sums provided for by the Mortgage, then the expenses necessarily become part of the mortgagee's lien and should be included in the judgment. Plaintiff respectfully requests that this Honorable Court grant its Motion to Reassess Damages. Plaintiff submits that it has acted in good faith in maintaining the Property in accordance with the Mortgage, and has relied on terms of the Mortgage with the understanding that it would recover the monies it expended to protect its collateral. WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. Hallinan & Schmieg, LLP DATE:I dn?t Lt. B By:/W tthe rushwood, Esquire Atto ey for Plaintiff 278603 Exhibit "A" 278603 FILED-OFFICE PHELAN HALLINAN & SCHMIEG, LLPt' THE pROTHaNOTAR'lorney for Plaintiff Matthew Brushwood, Esq., Id. No.310592 2012 MAY 21 AM 9= 51 1617 JFK Boulevard, Suite 1400 TY One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 COMEPNNSYLVAN A THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006- 35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB vs. RICHARD R. EICHELBERGER : CUMBERLAND COUNTY : COURT OF COMMON PLEAS : CIVIL DIVISION : No. 2012-121 PRAECIPE FOR IN REM JUDGMENT FOR FAILURE TO ANSWER AND ASS T OF DAMAGES TO THE PROTHONOTARY: Kindly enter judgment in favor of the Plaintiff and against $$$z Defendant(s) for failure to file an Answer to Plaintiff s Complaint within 20 days from service thereof and for foreclosure and sale of the mortgaged premises, and assess Plaintiffs damages as follows: As set forth in Complaint $106,315.27 TOTAL $106,315.27 I hereby certify that (1) the Defendant's last known address ' 535 3RD STREET, ENOLA, PA 17025, and (2) that notice has been given in a Rule Pa.R.C.P 237.1. Date 4?m? r saw? wood, Esquire AtoMeyfor Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: S PITS # 278603 PROTHONOTARY 0.6,? stfr•S6 W? 0.* 4 3 ?? tti1G,;.led N0h(A 278603 Exhibit "B" 278603 PHELAN HALLINAN & SCHMIEG, LLP 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FAX#: (215) 563-3459 Phelan Hallinan & Schmieg, LLP Representing Lenders in Pennsylvania and New Jersey October 5, 2012 RICHARD R. EICHELBERGER 1535 3RD STREET F/K/A 535 3RD STREET ENOLA, PA 17025 RE: THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB v. RICHARD R. EICHELBERGER Premises Address: 1535 3RD STREETF/K/A 535 3RD STREET ENOLA, PA 17025 CUMBERLAND County CCP, No. 2012-121 Dear Defendant, Enclosed please find a true and correct copy of my proposed Motion to Reassess Damages and Order. In accordance with Cumberland County Local Rule 208.3(9), I am seeking your concurrence with the requested relief that is, increasing the amount of the judgment. Please respond to me within 5 days, by 10/10/2012. Should you have further questions or concerns, please do not hesitate to contact me. Otherwise, please be guided accordingly. Plaintiff Enclosure Esq., Id. No.310592 278603 .-4 r M V to ? z CA Y ?++ a P' 0g:9. Rp J ? aC1? a 1 0 5 a? e0?o cr ., o . ro ? ? R r" ' tin y f ? Qy c ro w a ? t 3 x?y9.M? W a n N 4 r6 ?y "d X rn "R.6 O p g ? u N v 00 O? O W Phelan Hallinan & Schmieg, LLP Matthew Brushwood, Esq., Id. No.310592 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CtRTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff V. RICHARD R. EICHELBERGER Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No.: 2012-121 CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiffs Motion to Reassess Damages, and Brief in Support thereof, were sent to the following individual on the date indicated below. RICHARD R. EICHELBERGER 1535 3RD STREET F/K/A 535 3RD STREET ENOLA, PA 17025 DATE: [ Phelan & Schmieg, LLP By: M ttfiew B hwood, Esquire ATTDINEY FOR PLAINTIFF 278603 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006- 35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB, Plaintiff v. RICHARD R. EICHELBERGER, Defendant 2012-121 CIVIL ACTION IN RE: PLAINTIFF'S MOTION TO REASSESS DAMAGES ORDER OF COURT AND NOW, this 18th day of October 2012, upon consideration of the Plaintiff's Motion to Reassess Damages, a Rule is issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days from the date of this order. BY THE COURT Thomas acey C.P.). Distribution List: / Matthew Brushwood, Esq. 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 Attorney for Plaintiff ~;cS /rtG2,/CG~ ~~~/~~Z ~~ ~ Richard R. Eichelberger _ 1535 3~d Street F/K/A 535 3~d Street , ~ ~5, , ., Enola, PA 17025 ' ~ ~ -~<< ' Y~ = ~. Defendant, pro se i"'- . .~._ ~. ~._. ._., ~~~ ~~. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT Phelan Hallman &Schmieg, LLP Allison F. Wells, Esq., Id. No.309519 1617 JFK Boulevard, Suite 1400 One Pem1 Center Plaza Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELL ON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERII3S 2006-35CB Plaintiff vs. RICHARD R. EICHELBERGER Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No.: 2012-121 CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the Court's October 18, 2012 Rule directing the Defendant to show cause as to why Plaintiff s Motion to Reassess Damages should not be granted was served upon the following individual on the date indicated below. c-~ ~ ~.; ~ ~~ .,~. RICI-TARO R. EICHELBERGER ~~ ~~ ^~ ~ `~ ~~~ 1535 3RD STREET F/K/A 535 3RD STREET ~~ ENOI.A, P~~ 17025 ~ ~ i ~ ~ ~ -~-; Phelan- Hallin~ Schmieg, LLP ~ ~ =`' DATE: _~~ v ~ % By:-~~r~~ Allison F. Wells, Esq., Id. No.309519 Attorney for Plaintiff 278603 Phelan Hallinan & Schmieg, LLP Melissa J. Cantwell, Esq., Id. No.308912 1617 JFK Boulevard, Suite 1400 ATTORNEY FOR PLAINTIFF One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff vs. RICHARD R. EICHELBERGER Defendant Court of Common Pleas Civil Division CUMBERLAND Coin '~; ` No :2012-121 ; -,< _~_, . ,,~ ~.;, t f"- ~ -~'-d ~,,„3 --~. -^e~ r ~ --- ~~--;-, .~:. ~ ~. C...,t ...;.~ ,..y ~ ~"' ' ~-' ~,, l In t ~ I ~`-~ ~~ ~~: ~,, - MOTION TO MAKE RULE ABSOLUTE THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB, by and through its attorney, hereby petitions this Honorable Court to make Rule to Show Cause absolute in the above-captioned action, and in support thereof avers as follows: A Motion to Reassess Damages was filed with the Court on October 15, 2012. 2. In accordance with Cumberland County Local Rule 208.3(9), Plaintiff sent a copy of its proposed Motion to Reassess Damages and Order to the Defendant on October 5, 2012 and requested the Defendant's Concurrence. Plaintiff did not receive any response from the Defendant. True and correct copies of Plaintiffs letter pursuant to Local Rule 208.3(9) and certificate of mailing are attached hereto, made part hereof, and marked as Exhibit "A". 3. A Rule was issued by the Honorable Thomas A. Placey on or about October 18, 2012 directing the Defendant to show cause by November 7, 2012 why the Motion to Reassess Damages should not be granted. A true and correct copy of the Rule is attached hereto, made part hereof, and marked Exhibit "B". 278603 4. The Rule to Show Cause was timely served upon all parties on October 26, 2012 in accordance with the applicable rules of civil procedure. A true and correct copy of the Certificate of Service is attached hereto, made part hereof, and marked Exhibit "C". 5. Defendant failed to respond or otherwise plead by the Rule Returnable date of November 7, 2012. WHEREFORE, Plaintiff requests that this Honorable Court make the Rule to Show Cause absolute and grant Plaintiff's Motion to Reassess Damages. helan llinan & Sc 'eg, LLP NOV 0 9 2012 DATE: By: Melissa J. Cantwell, Esq., Id. No.308912 Attorney for Plaintiff 278603 Exhibit "A" 278603 PHELAN HALLINAN & SCHMIEG, LLP 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FAX#: (215) 563-3459 Phelan Hallinan & Schmieg, LLP Representing Lenders in Pennsylvania and New Jersey October 5, 2012 RICHARD R. EICHELBERGER 1535 3RD STREET F/K/A 535 3RD STREET ENOLA, PA 17025 RE: THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB v. RICHARD R. EICHELBERGER Premises Address: 1535 3RD STREETF/K/A 535 3RD STREET ENOLA, PA 17025 CUMBERLAND County CCP, No. 2012-121 Dear Defendant, Enclosed please fmd a true and correct copy of my proposed Motion to Reassess Damages and Order. In accordance with Cumberland County Local Rule 208.3(9), I am seeking your concurrence with the requested relief that is, increasing the amount of the judgment. Please respond to me within 5 days, by 10/ 10/2012. Should you have further questions or concerns, please do not hesitate to contact me. Otherwise, please be guided accordingly. Plaintiff Enclosure Esq., Id. No.310592 278603 ro-~ ~ r ~ oaz ~ ~ ~,~ ~ M ~ ry p' . y a R a fl ~ D ~ CA D R ~n ~• d x' * ~ ~ z G C N ~~ ~ z~wn ~ '.~°i~ o~ n ~w~ "' '~~ x~ ~~ ~~ m ~ bU ~ ~~~~ ~ ~ ~~a~~ a~ ~ ~ rn ~ ~ ~-~~n ~ ~rop ,cn n ~+ n t~ t~ K ~' U' ~ ~ ~ r ~ ~ , ~ °~ ~ ro t" ~ ~ ~ N 6 CY ~ T' ~ ~ 'r }: ~ ~ ~ y ry . O ~ ~ [r1 3 ~ o ~ ~ H ^' 0 ~~ ~~ ~ n -, ° ~ ~ a ~ a ~ r a ~ N v 00 O .W x'~E.s ~~fi ya °,~'~ ~ ~ C wB.Q aao~~ c~ ~S'w ~ J N A p ~• ~. D 6 n n ~ W C~_~j~ M ~C. ~yy C O O M1O pp' A p O M1 N iii' ~ ~ ~, M N ~ t t ~ `dg~A~ to ~ ^ ~• ~ ~ F ~ ~ y ~ ~ ~ ~ ~ n ~. ~ ~_ H ~ '~ ._> w ~ ~ a e ~ ~ ~" E ~.~~' ~~~~. O ~ O ~~ ~ 0 ~~ g33 2 5 P; 0 A w c ~ ', ~: '~ .a awa ~ term ~, 02 ~~,~ ~ Q1.59° Gt~Q42772~g ~; ~,~ 2012 AlLELt F9~O1V[ ZtP Gt7I,3E 1 9 t; 3 Exhibit "B" 278603 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006- 35C6, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB, Plaintiff v. RICHARD R. EICHELBERGER, Defendant 2012-121 CIVIL ACTION IN RE: PLAINTIFF'S MOTION TO REASSESS DAMAGES ORDER OF COURT AND NOW, this 18~h day of October 2012, upon consideration of the Plaintiffs Motion to Reassess Damages, a Rule is issued upon Defendant to show cause why the relief requested should not be granted. RULE RETURNABLE within 20 days from the date of this order. Distribution Ust: Matthew Brushwood, Esq. 1817 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 Attorney for Plaintiff IN .THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT BY THE COURT~_~~~ Thomas 'acey C.P.J. ~, Richard R. Eichelberger ~~.~ 1535 3ro Street ~~~_~ ~ 3 F/K/A 535 3`d Street f ~~= „_`' Enola, PA 17025 ~°~~ -~ Defendant, pro se c~~ Exhibit "C" 278603 i~~;L~t7-0~~'1G~ `Jf THE P;~tOTHOh~Ii~~Y Phelan Hallinan & Schmieg, LLP ~0l2 QGT 29 AM ~: ~~ Allison F. Wells, Esq., Id. No.309519 <~`1'TORNEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 1400 CUM$)~RLAhID COUNTY One Penn Center Plaza PEkN~YlVAN1A Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB 1'larntcff ~` ~~ vS, ~~,+4 ~' e~ R.lc.'11rlItl~ R. I;1C~HEl_.I31 IZL~;R Defendant Court a!'Comn~on 1'teas Civil Lli~`ision Cl_1M131~:IZLA1~li:) C'ottnt~,° Nc).: ?012-12 ~ ! '1 -~ ~~ ~ n..> , , `~~ , ~ "i'i ~ ~. ~ ~ ~~_ ~~ ~-~ ~ ~~ ~ ~ ~-t--, ~ ~ ~ -~~' ~, ~~ _ r ~ C.T1 ~~ %~ 1 ..CERTIFICATION OF SERVICE I hereby certify that a true and correc ;copy of the Court's October 18, 2012 Rule directing the Defendant to show cause as t~ why PIaintiffs Motion to Reassess Damages should not be granted was served upon the follo~-ping individual on the date indicated below. RICHARD R. EICHELBERGER 1535 3RD STREET F/K/A 535 3RD STREET ENOLA, PA 17025 DATE: 1'helstce I Ialln~r~ Sehmieg, LLP By. Allison F. Wells, Esq., Id. No.309519 Attorney for Plaintiff 278603 Phelan Hallinan & Schmieg, LLP Melissa J. Cantwell, Esq., Id. No.308912 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff vs. RICHARD R. EICHELBERGER Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division CUMBERLAND County No.: 2012-121 CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of Plaintiff s Motion to Make Rule Absolute was served upon the following individual on the date indicated below. RICHARD R. EICHELBERGER 1535 3RD STREET F/K/A 535 3RD STREET ENOLA, PA 17025 P elan H inan & Sc ie LLP NOV 0 9 1012 DATE: By: elissa J. Cantwell, ., . No.308912 Attorney for Plaintiff 278603 THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006- 35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB, Plaintiff v. RICHARD R. EICHELBERGER, Defendant 2012-00121 CIVIL TERM MORTGAGE FORECLOSURE IN RE: MOTION TO MAKE RULE ABSOLUTE ORDER OF COURT AND NOW, this 20t" day of November 2012, upon consideration of the Motion to Make Rule Absolute, and it appearing that Defendant has failed to file a response of record despite a Rule being issued on 18 October 2012, directing Defendant to file such a response, Plaintiff's Motion is GRANTED. Distribution List: / Melissa J. Cantwell, Esq. 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103 Richard R. Eichelberger 1535 3~d Street F/K/A 535 3~d Street Enola, PA 17025 ~~ ~_______ BY,T~r 11RT~___... .-+-~ Thomas A. Placey C.P.J. M~~~ ~~~. IN THE COURT OF COMMON PLEAS OF THE NINTH JUDICIAL DISTRICT ~~ c~ -~ CT-~'~y a' cn ~, -.c ~„, r ~~ v ~.~ :~ N a -o 3 c.~ ~~ ~, ~. _., iT1T^ c3~~~ -~: z _~ -~, c; ~-: v ~'; !.: PHELAN HALLINAN & SCHMIEG, LLP Attorney for Plaintiff ~ '- °. Meredith Wooters, Esq., Id. No.307207 ;_" 1617.IFK Boulevard, Suite 1400 ~ ~--• One Penn Center Plaza Philadelphia, PA 19103 21 i-56~-7000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS TRUSTEE FOR THE CF,KTIFICATEHOLDERS CWALT, INC., ALTERNATIVE LOAN TRUST 2006-35CB, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-35CB Plaintiff, CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL. DIVISION No.: 2012-I21 KICHARD R. EICHELBERGER Defendant(s) AFFIDAVIT OF SERVICE PURSUANT TO RULE 3129.1 COMMONWEALTH OF PENNSYLVANIA ) PHILADELPHIA COUNTY ) SS: As required by Pa. R.C.P. 31291(a) Notice of Sale has been given to Lienholders and any known interested party in the manner required by Pa. R.C'.P. 3129.2(c) on each of the persons or parties named, at that address, set forth on the Affidavit and as amended if applicable. A copy of the Certificate of Mailing (Form 3817) and/or Certified Mail Return Receipt stamped by the U.S. Postal Service is attached hereto Exhibit "A". r j r~ ~ 1 ercdi ~~~~, ~ ___ ----- th Wootcrs. Esi_luire ~ ~ Attorney for Plaintiff DBC~': _-- _ ~T~ I ~- IIVTPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not he sold in the absence of a representative of the plaintiff at the Sheriff's Sale. The sale must be postponed or stayed in the event that a representative of the plaintiff is not present at the sale. P>-I 5 ~ ? 7~S(~0 3 A W ~N -r ~ L7 OQ ~.1 Lh to A W N ar ~'" ~ ~. ~ w' ~F ~F 7p 7F * * 7} 4 7F t ?F i 7F ~A 9 8 i ~ k ~ . # ~ ~ ~ . .~ ~ ~ ~ ~ ~ ~ b ~- ~ ~~ ~ aft>a ~ ~~, Cn r ~ r~ ~~ ~,x~c~ r~ ~ ' "'Qaat~s ~.~ ~ r""c~s~" ~ `9 ~ ~ ~~ x~ ~ ~ ~ ~ x~ c~~~ ~ x ~ ~A~ ~ a ~~~~ ~ ~ ~ a Z b ~ ~, ~ ~ ,.r~~y ~~ ~~V~ CC~J t+t~1~ A Q..3 oQQ~ ~.i ~ ~~ ~ ui ~~~~ z~ ~ ~O w~C~ C s `~ c ~ ~ x~ ~ ~b ~ ~~' o a ~ ~~ ~ ~d ' ~ ~ ~ lx! 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