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HomeMy WebLinkAbout13-1958 Supreme Court-of Pennsylvania Cour �� Commt `Pleas c For Prothonotary Use Only: 1 G'v�?CoveP� S�h`eet T, CU'IERG� NDR9� County Docket No: � o 13 — 95 The information collected on this form is used solely for court administration purposes. This form does not supp lement or replace the and service ofpleadings or other papers as required by lair or rules of court. S Commencement of Action: 0 Complaint ❑ Writ of Summons ❑ Petition E ❑ Transfer from Another Jurisdiction ❑ Declaration of Taking C Lead Plaintiffs Name: ALLY BANK Lead Defendant's Name: KELBY D. BERRIER T I Are money damages requested? ❑ Yes ❑x No Dollar Amount Requested: ❑ within arbitration limits Q (Check one) ❑x outside arbitration limits N Is this a Class Action Suit? ❑ Yes 0 No is this an MDJ Appeal? ❑ Yes ❑x No A Name of Plaintiff /Appellant's Attorney: Allison F. Zuckerman, Esq., Id. No 309519 Phelan Hallinan LLP ❑ Check here if you have no attorney (are a Self- Represented [Pro Sel .Litigant) Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Blass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS ❑ Intentional ❑ Buyer Plaintiff Administrative Agencies ❑ Malicious Prosecution ❑ Debt Collection: Credit Card ❑ Board of Assessment ❑ Motor Vehicle ❑ Debt Collection: Other ❑ Board of Elections ❑ Nuisance ❑ Dept. of Transportation ❑ Premises Liability ❑ Statutory Appeal: Other ❑ Product Liability (does not S include mass tort) ❑ Employment Dispute: ❑Slander/Libel /Defamation Discrimination E ❑ Other: ❑ Employment Dispute: Other ❑ Zoning Board C ❑ Other: T I MASS TORT ❑ Other: O ❑ Asbestos N ❑ Tobacco ❑ Toxic Tort - DES • Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS • Toxic Waste ❑ Ejectment ❑ Common Law /Statutory Arbitration B ❑ Other: ❑ Eminent Domain /Condemnation ❑ Declaratory Judgment ❑ Ground Rent ❑ Mandamus ❑ Landlord/Tenant Dispute ❑ Non - Domestic Relations ® Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABILITY ❑ Mortgage Foreclosure: Commercial ❑ Quo Warranto • Dental ❑ Partition ❑ Replevin • Legal ❑ Quiet Title ❑ Other: • Medical ❑ Other: ❑ Other Professional: Pa.R.0 A 205.5 Updated 0110112011 FILED- OFFICE OF THE PROTHONOTARY 2013 APR 15 AM 10: 13 CUMBERLAND COUNTY PENNSYLVANIA PHELAN HALLINAN, LLP Allison F. Zuckerman, Esq., Id. No.309519 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza ATTORNEY FOR PLAINTIFF Philadelphia, PA 19103 215 -563 -7000 ALLY BANK C/O OCWEN LOAN SERVICING, LLC COURT OF COMMON PLEAS 1100 VIRGINIA DRIVE P.O. BOX 8300 CIVIL DIVISION FORT WASHINGTON, PA 19034 TERM V. Plaintiff 19Sg KELBY D. BERRIER CUMBERLAND COUNTY 128 SHIPPENSBURG MOBILE ESTATE SHIPPENSBURG, PA 17257 -9534 Defendant CIVIL ACTION -.LAW COMPLAINT IN MORTGAGE FORECLOSURE I kill- C89M File #: 272777 NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you, and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY ATTORNEY REFERRAL CUMBERLAND COUNTY BAR ASSOCIATION CUMBERLAND COUNTY COURTHOUSE 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249 -3166 (800) 990 -9108 File #: 272777 1. Plaintiff is ALLY BANK C/O OCWENLOAN SERVICING, LLC 1100 VIRGINIA DRIVE P.O. BOX 8300 FORT WASHINGTON, PA 19034 2. The name(s) and last known address(es) of the Defendant(s) are: KELBY D. BERRIER 128 SHIPPENSBURG MOBILE ESTATE SHIPPENSBURG, PA 17257 -9534 who is /are -the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 01/02/2007 KELBY D. BERRIER made, executed and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INCORPORATED AS A NOMINEE FOR QUICKEN LOANS, INC which mortgage is recorded in the Office of the Recorder of Deeds of CUMBERLAND County, in Mortgage Book 1980, Page 3357. By Assignment of Mortgage recorded 12/19/2011 the mortgage was assigned to GMAC MORTGAGE, LLC which Assignment is recorded in Assignment of Mortgage Instrument No. 201135274. The PLAINTIFF is now the mortgagee and is in the process of formalizing an assignment of same. The mortgage and assignment(s), if any, are matters of public record and are incorporated herein by reference in accordance with Pa.R.C.P. 1019(g); which Rule relieves the Plaintiff from its obligations to attach documents to pleadings if those documents are of public record. 4. The premises subject to said mortgage is described as attached. 5. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 01/01/2011 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of Mortgagor to make such payments after a date specified File #: 272777 by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. 6. The following amounts are due on the mortgage as of 02/13/2013: Principal Balance $144,000.00 Interest $19,544.96 12/01/2010 to 02/13/2013 Late Charges $955.50 Property Preservation $1,166.80 Escrow Deficit $4,892.02 TOTAL $170,559.28 7. Plaintiff is not seeking a judgment of personal liability (or an in personam judgment) against the Defendant(s) in the Action; however, Plaintiff reserves its right to bring a separate Action to establish that right, if such right exists. If Defendant(s) has/have received a discharge of personal liability in a bankruptcy proceeding, this Action of Mortgage Foreclosure is in no way an attempt to reestablish such personal liability discharged in bankruptcy, but only to foreclose the mortgage and sell the mortgaged premises pursuant to Pennsylvania Law. 8. The mortgage premises are vacant and abandoned WHEREFORE, Plaintiff demands an in rem judgment against the Defendant(s) in the sum of $170,559.28, together with interest, costs, fees, and charges collectible under the mortgage including but not limited to attorney fees and costs, and for the foreclosure and sale of the mortgaged property. PHEL LP By: Aron F. Zucke , Esq., Id. No.309519 A omey for P tiff File H: 272777 LEGAL DESCRIPTION Tax ID Number: 39 -36- 2436 -003 Land situated in the Township of Southampton in the County of Cumberland in the State of PA ALL THAT CERTAIN LOT OF LAND SITUATE IN THE TOWNSHIP OF SOUTHAMPTON, COUNTY OF CUMBERLAND AND COMMONWEALTH OF PENNSYLVANIA, BEING LOT# 23 IN THE DEVELOPMENT KNOWN AS SOUTH MOUNTAIN ESTATES, BOUNDED AND DESCRIBED AS FOLLOWS, TO WIT: BEGINNING AT A POINT AT COMMON CORNER WITH LOT #22 AT OTHER LAND NOW OR FORMERLY OF JOSEPH B. HAZZARD AND ESTHER M. HAZZARD, HIS WIFE; THENCE BY LOT #22, NORTH 79 DEGREES 57 MINUTES EAST 158.35 FEET TO A POINT IN THE WEST SIDE OF CARLA DRIVE; THENCE BY THE WEST SIDE OF CARLA DRIVE BY A CURVE WHOSE RADIUS IS 1190.33 FEET AN ARC DISTANCE OF 99 FEET BY A LONG CHORD SOUTH 12 DEGREES 24 MINUTES 59 SECONDS EAST 98.97 FEET TO A POINT AT COMMON CORNER WITH LOT #24; THENCE BY LOT #24, SOUTH 75 DEGREES 12 MINUTES 2 SECONDS WEST 147.99 FEET TO A POINT AT OTHER LAND NOW OR FORMERLY OF JOSEPH B. HAZZARD, ET UX; THENCE BY HAZZARD LAND, NORTH 17 DEGREES 42 MINUTES 34 SECONDS WEST 112.18 FEET TO A POINT, THE PLACE OF BEGINNING. CONTAINING 16,051 SQUARE FEET, PER SURVEY OF J.H. RIFE, R.E., DATED JULY 31, 1970. Commonly known as: 25 Carla Dr, Shippensburg, PA 17257 PROPERTY ADDRESS: 25 CARLA DRIVE, SHIPPENSBURG, PA 17257 -8220 PARCEL # 39 -36- 2436 -003 File N: 272777 . �J VERIFICATION Ka telyn Mc Cauley hereby states that he /she is Aljty\brl2P8 Slade( of OCWEN LOAN SERVICING, LLC, servicing agent for Plaintiff in this matter, that he /she is authorized to make this Verification, and verify that the statements made in the foregoing Civil Action in Mortgage Foreclosure are true and correct to the best of his/her 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. �D Name: KateIyn McCauley DATE: mffCh ? Title: fiot o lied f pwr OCWEN LOAN SERVICING, LLC seru a'ng 0aw fir File #: 272777 Name: BERRIER File #: 272777 IN THE COURT OF COMMON ALLY BANK PLEAS C/O OCWENLOAN SERVICING, LLC OF CUMBERLAND COUNTY, Plaintiff(s) PENNSTLVANIA vs. KELBY D. BERRIER Defendant(s) : ,3 _ ` QS8 Civil NOTICE OF RESIDENTIAL MORTGAGE. FORECLOSURE DIVERSION PROGRAM You have been served with a foreclosure complaint that could cause you to lose your home. If you own and live in the residential property which is the subject of this foreclosure action, you may be able to participate in a court- supervised conciliation conference in an effort to resolve this matter with your lender. If you do not have an attorney, you must take the following steps to be eligible for a conciliation conference. First, within twenty (20) days of your receipt of this notice, you must contact MidPenn Legal Services at (717) 243 -9400 extension 2510 or (800) 822 -5288 extension 2510 and request appointment of a legal representative at not charge to you. Once you have been appointed a legal representative, you must promptly meet with the legal representative within twenty (20) days of the appointment date. During that meeting, you must provide the legal representative with all the requested financial information so that a loan resolution proposal can be prepared on your behalf. If you and your legal representative complete a financial worksheet in the format attached hereto, the legal representative will prepare and file a Request for Conciliation Conference with the Court, which must be filed with the Court within sixty (60) days of the service upon you of the foreclosure complaint. If you do so and a conciliation conference is scheduled, you will have an opportunity to meet with a representative of your lender in attempt to work out a reasonable arrangements with your lender before the mortgage foreclosure suit proceeds forward. If you are represented by a lawyer, you and your lawyer must take the following steps to be eligible for a conciliation conference. It is not necessary for you to contact MidPenn Legal Service for the appointment of a legal representative. However, you must provide your lawyer with all the requested financial information so that a loan resolution proposal can be prepared on your behalf. If you and your lawyer complete a financial worksheet in the format attached hereto, your lawyer will prepare and file a Request for Conciliation Conference with the Court, which must be filed with the Court within sixty (60) days of the service upon you of the foreclosure complaint. If you do so and a conciliation conference is scheduled, you will have an opportunity to meet with a representative of your lender in an attempt to work our reasonable arrangements with your lender before the mortgage foreclosure suit proceeds forward, IF YOU WISH TO SAVE YOUR HOME, YOU MUST ACT QUICKLY AND TAKE THE STEPS REQUIRED BY THIS NOTICE. THIS PROGRAM IS FREE. Respectfully submitted: Date AI n F. u kerrn , sq. Id..No. 305199, ° Signature of Counsel for Plaintiff .U3 --- i M CD -V rni� cn� — o0 �z —o )>O =r T_ .�O Cj c7 C O ,M � w z Cumberland County Residential Mortgage Foreclosure Diversion Program Financial Worksheet Date Cumberland County Court of Common Please Docket # BORROWER REQUEST FOR HARDSHIP ASSISTANCE To complete your request for hardship assistance, your lender must consider your circumstances to determine possible options while working with your Please provide the following information to the best of your knowledge: CUSTOMER/PRIMARV APPLICANT Borrower name(s): Property Address: City: State: Zip: Is the property for sale? Yes ❑ No ❑ Listing date: Price: $ Realtor Name: Realtor Phone: Borrower Occupied? Yes ❑ No ❑ Mailing Address (if different): City: State: Zip: Phone Numbers: Home: Office: Cell: Other: Email: # of people in household: How long? V090M M11 Mailing Address: City: State:—Zip: Phone Numbers: Home: Office: Cell: Other: Email: # of people in household: How long? FINANCIAL INFORMATION First Mortgage Lender: Type of Loan: Loan Number: Date you Closed Your Loan: Second Mortgage Lender: Type of Loan: Loan Number: Total Mortgage Payments Amount: $ Included Taxes & Insurance: Date of Last Payment: Primary Reason for Default: Is the loan in Bankruptcy? Yes ❑ No ❑ If yes, provide names, location of court, case number & attorney: Assets Amount Owed Value: Home: $ $ Other Real Estate: $ $ Retirement Funds: $ $ Investments: $ $ Checking: $ $ Savings: $ $ Other: $ $ Automobile #1: Model: Year: Amount owed: Value: Automobile #2 : Model: Year: Amount owed: Value: Other transportation (automobiles boats motorcvcles)7 Model: Year: Amount owed: Value Monthly Income Name of Employers: 2. 3. Additional Income Description (not wages): 1 • monthly amount: 2. monthly amount: Borrower Pay Days: Co- Borrower Pay Days: Monthly Expenses: (Please only include expenses you are currently paying) EXPENSE AMOUNT *EENS E AMOUNT Mortgage 2" Mort a e Car Pa ent s i h. Fees Auto I nsurance covered) Auto fueUre airs a ment Install. Loan Payment Child Su ort/Alim. oney Day /Child Care/Tuit. I Other Expenses Amount Available for Monthly Mortgage Payments Based on Income & Expenses: Have you been working with a Housing Counseling Agency? Yes ❑ No ❑ If yes, please provide the following information: Counseling Agency: Counselor: Phone (Office): Fax: Email: Have you made application for Homeowners Emergency Mortgage Assistance Program (HEMAP) assistance? Yes ❑ No ❑ If yes, please indicate the status of the application: Have you had any prior negotiations with your lender or lender's loan servicing company to resolve your delinquency? Yes ❑ No ❑ If yes, please indicate the status of those negotiations: Please provide the following information, if you know, regarding your lender or lender's loan servicing company: Lender's Contact (Name): Phone: Servicing Company (Name): Contact: Phone: AUTHORIZATION ]/We, authorize the above named to use /refer this information to my lender / servicer for the sole purpose of evaluating my financial situation for possible mortgage options. I /We understand that I /we am /are under no obligation to use the services provided by the above named Borrower Signature Date Co- Borrower Signature Date Please forward this page along with the following information to lender: 1. Proof of income 2. Past 2 bank statements 3. Proof of any expected income for the last 45 days 4. Copy of a current utility bill 5. Letter explaining reason for delinquency and any supporting documentation (hardship letter) 6. Listing agreement (if property is currently on the market) SHERIFF'S OFFICE OF CUMBERLAND COUNTY . Ronny R Anderson l„� { � ►gyp jr'� � ! Sheriff ��*titc�,a�C:ar�hlicr�tx� �� Jody S Smith ` -j Ali jo' Chief Deputy k � Richard W Stewart x; Il MBERLAND COUNTY Solicitor OFFi OF THESMERrFF PE14NSYLVAt�1A Ally Bank Case Number vs. Kelby D. Berrier 2013-1958 SHERIFF'S RETURN OF SERVICE 05/01/2013 05:42 PM - Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Kelby D. Berrier, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Notice of Residential Mortgage Foreclosure Diversion Program and Complaint in Mortgage Foreclosure as"Not Found” at 25 Carla Drive, Southampton, Shippensburg, PA 17257. The residence is vacant. 05/03/2013 Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Kelby D. Berrier, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Notice of Residential Mortgage Foreclosure Diversion Program and Complaint in Mortgage Foreclosure as"Not Found"at 128 Shippensburg Mobile Estates, Shippensburg Township, Shippensburg, PA 17257. Deputies were advised by the current residents that they purchased the home from the defendant in December 2012. The Shippensburg Postmaster has provided a forwarding address of 23323 Croghan Pike, Shade Gap, PA 17255. SHERIFF COST: $93.20 SO ANSWERS, r May 14, 2013 RbNW R ANDERSON, SHERIFF (c)CountySuite Sheriff,Teleosofi,Inc. PHELAN HALLINAN,LLP d3 O�� Adam H.Davis,Esq.,Id.No.203034 1617 JFK Boulevard,Suite 1400 One Penn Center Plaza 215 563-7000 A 19103 Cl1 PENNSYLVANIA ALLY BANK COURT OF COMMON PLEAS Plaintiff CIVIL DIVISION VS. CUMBERLAND COUNTY KELBY D.BERRIER No. 13-1958-CIVIL TERM Defendants PRAECIPE TO REINSTATE CIVIL ACTION/MORTGAGE FORECLOSURE TO THE PROTHONOTARY: Kindly reinstate the Civil Action in Mortgage Foreclosure with reference to the above captioned matter. PHELAN HALLINAN,LLP By: Adam H. Davis,Esq., Id.No.203034 C ? Attorney for Plaintiff Date: /bsd, Svc Dept. File#272777 S Pff SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ` �1td0 Xkixt�, of atrterfir} j';1 �' Jody S Smith Chief Deputy ;< s t 20 ?t 3' Richard W Stewart , UBUtA Solicitor > . _ r .EFr ^,Ut4BE + R1. L PEN ISMAIA Ally Bank Case Number vs. 2013-1958 Kelby D. Berrier SHERIFF'S RETURN OF SERVICE 06/03/2013 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Kelby D. Berrier, but was unable to locate the Defendant in the Sheriffs bailiwick. The Sheriff therefore deputizes the Sheriff of Huntingdon, Pennsylvania to serve the within Notice of Residential Mortgage Foreclosure Diversion Program and Complaint in Mortgage Foreclosure according to law. 06/06/2013 The requested Notice of Residential Mortgage Foreclosure Diversion Program and Complaint in Mortgage Foreclosure served by the Sheriff of Huntingdon County upon Kelby D. Berrier, personally, at 23323 Croghan Pike, Shade Gap, PA 17255-8844. William G. Walters, Sheriff, Return of Service attached to and made part of the within record. SHERIFF COST: $37.00 SO ANSWERS, June 17, 2013 RONI■W R ANDERSON, SHERIFF our v tJ:e>h. 1€':,,oSC Inc. . .. k�, SHERIFF' S OFFICE 1;',12.:',14GDQ,�r ?,may ���..%-4,,,.:'%'' � � �' c NM COUNTY, PENNSYLVANIA " , + ,4 .7.., HUNTINGDON CO , R'f r 4:�.s `t o L.,. 4)- -: �c 241 Mifflin Street ' sit v M' ' Huntingdon, PA 16652 t~ two. ` u-.`, Telephone: 814-643-0880 �,?f William G.Walters,Sheriff Ally Bank No. 1958 Term:2013 Vs. Kelby D. Berrier 23323 Croghan Pike Shade Gap, PA 17255 Now, this 6th day of June , 2013 , at 1125 HOURS I served the within Notice and Complaint in Mortgage Foreclosure upon Kelby D. Berrier at 23323 Croghan Pike, Shade Gap, PA 17255 by handing to Kelby Berrier, personally one true and correct copy/copies of the within Notice and Complaint in Mortgage Foreclosure and made known to Kelby Berrier the contents thereof. So Answers, Sworn and subscribed to before me this I?j William G% alter, ' eriff male_ day o a 20 '3 , D. Deputy Lar , R. Cressman,Jr. • Chief Deputy/Deputy ,ill)1/111,U > 4 Costs: —I,Pion-�"�,I ota Publi Rec. & Doc. $9.00 N colmo �'0 . •:, • ,, ' SEAL Service $9.00 Tammy S.Poor,Notary Public Mileage/Postage $30.10 Huntingon Boro,Huntingdon County Surcharge --- My commission expires October 26,2014 Affidavit $5.00 Miscellaneous --- "Total Costs $53.10 Paid FIL-? --OF F I CE PHELAN HALLINAN, LLP OF THE PROTHONOTARY Attorney for Plaintiff Jonathan Lobb, Esq., Id. No.312174 2913 JUL 26-, AM 10: 34- 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza CUMBERLAND COUNTY Philadelphia, PA 19103 PENNSYLVANIA Jonathan.Lobb @ phelanhallinan.corn 215-563-7000 ALLY BANK CUMBERLAND COUNTY VS. COURT OF COMMON PLEAS KELBY D.BERRIER CIVIL DIVISION No. 13-1958-CIVIL TERM 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 KELBY D.BERRIER, Defendant 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 $170,559.28 TOTAL $170,559.28 1 hereby certify that(1) the Defendant's last known addresses are 23323 CROGHAN PIKE, SHADE GAP, PA 17255-8840 and 25 CARLA DRIVE, SHIPPENSBURG,PA 17257- 8220, and(2) that notice has been given in accordance with Rule Pa.R.C.P 237.1. Date A <)/3 J/atAhan Lobb, Esq., Id.�No31�2174 A Atto for Plaintift "o DAMAGES ARE HEREBY ASSESSED AS INDICATED. DATE: I lei I /.11) 1 01 Ll 0 PH#766609 PROTHONOTARY OCYK�10, 766609 C!k—# P-#'Ind A io M'," I PHELAN HALLINAN,LLP Attorney for Plaintiff Jonathan Lobb, Esq., Id. No.312174 1617 JFK Boulevard,Suite 1400 One Penn Center Plaza Philadelphia,PA 19103 Jonathan,Lobb@phelanhallinan.com 215-563-7000 ALLY BANK CUMBERLAND COUNTY VS. COURT OF COMMON PLEAS KELBY D.BERRIER CIVIL DIVISION No. 13-1958-CIVIL TERM 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 is 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 KELBY D. BERRIER is over 18 years of age and last known addresses are 23323 CROGHAN PIKE, SHADE GAP, PA 17255-8840 and 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. Date Pb�fa_n Hallinan,LLP Jonathan Lobb, Esq., Id. No.312174 Attorney for Plaintiff PHELAN HALLINAN, LLP 1.617 JFK Boulevard, Suite 1400 One Penn Center Plaza, Philadelphia,PA 19103 215-563-7000 766609 Department of Defense Manpower Data Center Results as of:dui-25-201312:20:59 SCRA 3.0 t Status Report Pursuant to Service-membom Civil Relief Act Last Name: BERRIER First Name: KELBY Middle Name: D Active Duty Status As Of: Jul-25-2013 On Active Duty On Active Duty Status Date Active Duty Start Date Active Duty End Date Status Service Component NA NA No NA This response reflects the individuals'active duty status based on the Active Duty Status Date Left Active Duty Within 367 Days of Active Duty Status Date Active Duty Start Date Active Duty End Date Status Service Component NA NA No NA This response reflects where the individual left active duty status within 367 days preceding the Active Duty Status Date The Member or His/Her Unit Was Notified of a Future Call-Up to Active Duty on Active Duty Status Date Order Notification Start Date Order Notification End Date Status Service Component NA NA No NA This response reflects whether the individual or histher unit has received early notification to report for wive duty Upon searching the data banks of the Department of Defense Manpower Data Center,based on the information that you provided,the above is the status of the individual on the active duty status date as to all branches of the Uniformed Services(Army,Navy,Marine Corps,Air Force,NOAA,Public Health,and Coast Guard). This status includes information on a Servicemember or his/her unit receiving notification of future orders to report for Active Duty. HOWEVER,WITHOUT A SOCIAL SECURITY NUMBER,THE DEPARTMENT OF DEFENSE MANPOWER DATA CENTER CANNOT AUTHORITATIVELY ASSERT THAT THIS IS THE SAME INDIVIDUAL THAT YOUR QUERY REFERS TO.NAME AND DATE OF BIRTH ALONE DO NOT UNIQUELY IDENTIFY AN INDIVIDUAL. Mary M.Snavely-Dixon,Director Department of Defense-Manpower Data Center 4800 Mark Center Drive,Suite 04E25 Arlington,VA 22350 (Rule of Civil Procedure No. 236) -Revised ALLY BANK CUMBERLAND COUNTY VS. COURT OF COMMON PLEAS KELBY D. BERRIER CIVIL DIVISION No. 13-1958-CIVIL TERM Notice is given that a Judgment in the above captioned matter has been entered against you on If you have any questions concerning this matter please contact: Phelan Hallinan, LLP Jonathan Lobb, Esq., Id. No.312174 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 BE ANATTEMPT TO COLLECT A DEBT, BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY. 766609 ALLY BANK COURT OF COMMON PLEAS Plaintiff CIVIL DIVISION KELBY D.BERRIER NO. 13-1958-CIVIL TERM Defendant(s) CUMBERLAND COUNTY TO: KELBY D.BERRIER 23323 CROGHAN PIKE SHADE GAP,PA 17255-8840 DATE OF NOTICE: THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY. IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN' APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNI.ESS 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 BAR Cumberland County Courthouse ASSOCIATION I Courthouse Square CUMBERLAND COUNTY COURTHOUSE Carlisle,PA 17013 2 LIBERTY AVENUE (717)240-6195 CARLISLE,PA 1,7013 (717)249-3166 k2ftBy: v Tinathan Cobb,Esq.,Id. No.312174 Attorney for Plaintiff Phelan Hallinan,LLP 1617 JFK Boulevard,Suite 1.400 One Penn Center Plaza Philadelphia.,PA 19103 PH#272777 ALLY BANK COURT OF COMMON PLEAS Plaintiff CIVIL DIVISION V. KELBY D.BERRIER NO. 13-1958-CIVIL TERM Defendant(s) CUMBERLAND COUNTY TO: KELBY D.BERRIER 25 CARLA DRIVE SHIPPENSBURG,PA 17257-8220 DATE OF NOTICE: THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT THE INDEBTEDNESS REFERRED TO HEREIN, AND ANY INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY AS ENFORCEMENT OF LIEN AGAINST PROPERTY, IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED To ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR.OBJECTIONS TO THE CLAWS 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 INMORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Office of the Prothonotary CUMBERLAND COUNTY BAR Cumberland County Courthouse ASSOCIATION I Courthouse Square CUMBERLAND COUNTY COURTHOUSE Carlisle, PA 17013 2 L113ERTY AVENUE (717)240-6195 CARLISLE,PA 1.7013 (717)249-3166 By: Rfathan Lobb,Esq.,Id.No.312174 Attorney for Plaintiff Phelan Hallinan,LLP 1617 J.FK Boulevard,Suite 1400 One Penn Center Plaza Philadelphia,PA 19103 PH#1272777 PRAECIPE FOR WRIT OF EXECUTION-(MORTGAGE FORECLOSURE) P.R.C.P. 3180-3183 ALLY BANK COURT OF COMMON PLEAS Plaintiff CIVIL DIVISION V. NO.: 13-1958-CIVIL TERM KELBY D.BERRIER Defendant(s) - CUMBERLAND COUNTY To the Prothonotary: . t Issue writ of execution in the above matter: Amount Due $170,559.28 Interest from 07/27/2013 to Date of Sale $3,673.24 ($28.04 per diem) TOTAL $174,232.52 IN" Phelan Hallinan,LLP Meredith Wooters,Esq.,Id.No.307207 Attorney for Plaintiff c: C-) r© , Note: Please attach description of property. ' r"` PH#766609 G r" �� N �GU (/\\ VVV D � V'■` q 3. F 3 oo �1. �a.a sou cg/ 3�a� IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA ALLY BANK Plaintiff V. KELBY D.BERRIER Defendant(s) PRAECIPE FOR WRIT OF EXECUTION (Mortgage Foreclosure) Filed: Address where papers may be served: KELBY D.BERRIER Phelan Ha roan,LLP 23323 CROGHAN PIKE Meredith Wooters,Esq.,Id,No.307207 SHADE GAP, A PIKE 8840 Attorney for Plaintiff J j i LEGAL DESCRIPTION ALL that certain.lot of land situate in the Township of Southampton, County of Cumberland and Commonwealth!of Pennsylvania, being Lot#23 in the Development known as South Mountain Estates,bounded and described as follows,to wit: I BEGINNING at a point at common corner with Lot#22 at other land now or formerly of Joseph B. Hazzard and Esther M.Hazzard, his wife; thence by Lot#22,North'79 degrees 57 minutes East 158.35 feet to a point in the West side of Carla Drive; thence by the West side of Carla Drive by a curve whose radius is 1190.33 feet an arc distance of 99 feet by a long chord South 12 degrees 24 minutes 59 seconds East 98.97 feet to a point at common corner with Lot#24;thence by Lot#24, South 75 degrees 12 minutes 2 seconds West 147.99 feet to a point at other land now or formerly of- Joseph B. Hazzard, et ux; thence by Hazzard land,North 17 degrees 42 minutes 34 seconds.West 112.18 feet to a point, the place of BEGINNING. CONTAI1\TING116,051 square feet, per survey of J.H. Rife, R.E.,dated July 31, 1970. TITLE TO SAID PREMISES VESTED TN Kelby D. Berrier by David Thomas Goyt, H and Linda A. Goyt, h/w, dated 07/14/2004, recorded 07/16/2004 in Book 264 Page 978 PREMISES BEING: 25 CARLA DRIVE,SHIPPENSBURG,PA 17257-8220 PARCEL NO. 39-316-2436-003 i . i i I i PHELAN HALLINAN,LLP j :t) 0 r 1 Attorneys for Plaintiff Meredith Wooters, Esq., Id. No.307207 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza �3 NUG 22 Philadelphia, PA 19103 . -Y Meredith.Wooters @phelanhallinan.com CUMBERLAND COUNT 215-563-7000 ALLY BANK COURT OF COMMON PLEAS Plaintiff CIVIL DIVISION V. NO.: 13-1958-CIVIL TERM KELBY D.BERRIER Defendant(s) CUMBERLAND COUNTY CERTIFICATION The undersigned attorney hereby states that he/she is the attorney for the Plaintiff in the above captioned matter and that the premises are not subject to the provisions of Act 91. because: ( ) the mortgage is an FHA Mortgage ( ) the premises is non-owner occupied (X) the premises is vacant ( ) Act 91 procedures have been fulfilled ( ) Act 91 is Not Applicable pursuant to Pa Bulletin, Doc No 11-1197, 41 Pa.B. 3943 This certification is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. By: Phelan Hallinan,LLP Meredith Wooters,Esq.,Id.No.307207 Attorney for Plaintiff or - 1 U 1 F LO- ALLYBANK PROWONOTAk< COURT OF COMMON PLEAS Plaintiff I AUG 22 AV, 0 22 CIVIL DIVISION V. CUMBERLAND COUNTY KELBY D.BERRIER NO.: 13-1958-CIVIL TERM Defendant(s) CUMBERLAND COUNTY AFFIDAVIT PURSUANT TO RULE 31291 ALLY BANK,Plaintiff in the above action,by the undersigned attorney,sets forth as of the date the Praecipe for the Writ of Execution was filed,the following information concerning the real property located at 25 CARLA DRIVE,SHIPPENSBURG,PA 17257-8220. I Name and address of Owner(s)or reputed Owner(s): Name Address(if address cannot be reasonably ascertained, please so indicate) KELBY D.BERRIER 23323 CROGRAN PIKE SHADE GAP,PA 17255-8840 2. Name and address of Defendant(s)in the judgment: Name Address(if address cannot be reasonably ascertained,please so indicate) KELBY D.BERRIER. 23323 CROGHAN PIKE SHADE GAP,PA 17255-8840 1 Name and last known address of every judgment creditor whose judgment is a record lien on the real property to be sold: Name Address(if address cannot be reasonably ascertained,please indicate) None. 4, Name and address of last recorded holder of every mortgage of record: Name Address(if address cannot be reasonably ascertained,please indicate) BANK OF AMERICA C/O BAC 1800 TAPO CANYON ROAD M/C: CA6-914-01-43 SIMI VALLEY,CA 93063 BANK OF AMERICA C/O CORELOGIC I CORELOGIC DRIVE MAIL STOP:ASGN WESTLAKE,TX 76262-9823 BANK OF AMERICA C/O DIANA DE AVILA 1800 TAPO CANYON ROAD SIA41 VALLEY,CA 93063 PH#766609 5. Name and address of every other person who has any record lien on the property: Name Address(if address cannot be reasonably ascertained,please indicate) None. 6. Name and address of every other person who has any record interest in the property and whose interest may be affected by the sale. Name Address(if address cannot be reasonably ascertained,please indicate) None. 7. Name and address of every other person of whom the plaintiff has knowledge who has any interest in the property which may be affected by the sale: Name Address(if address cannot be reasonably ascertained,please indicate) TENANT/OCCUPANT 25 CARLA DRIVE SHIPPENSBURG,PA 17257-8220 DOMESTIC RELATIONS OF 13 NORTH HANOVER STREET CUMBERLAND COUNTY CARLISLE,PA 17013 COMMONWEALTH OF PENNSYLVANIA P.O.BOX 2675 DEPARTMENT OF WELFARE HARRISBURG,PA 17105 INTERNAL REVENUE SERVICE ADVISORY 1000 LIBERTY AVENUE ROOM 704 PITTSBURGH,PA 15222 U.S.DEPARTMENT OF JUSTICE 228 WALNUT STREET,SUITE 220 U.S.ATTORNEY FOR THE MIDDLE PO BOX 11754 DISTRICT OF PA HARRISBURG,PA 17108-1754 FEDERAL BUILDING I verify that the statements made in this affidavit are true and correct to the best of my personal knowledge or information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. mm"Date: t1( 1 By: Phelan Hailinan,LLP Meredith Wooters,Esq.,Id.No.307207 Attorney for Plaintiff PHELAN HALLINAN,LLP 1617 JFK Boulevard,Suite 1400 One Penn Center Plaza,Philadelphia,PA 19103 215-563-7000 PH#766609 OTHONOTAh ALLY BANK COURT OF COMMON PLEAS NIMC- 22 010- 22 CUMBERLAND COUNTY Plaintiff CIVIL DIVISION RaNSYLVAW N NO.: 13-1958-CIVIL TERM KELBY D.BERRIER Defendant(s) CUMBERLAND COUNTY NOTICE OF SHERIFF'S SALE OF REAL PROPERTY TO: KELBY D.BERRIER 23323 CROGRAN PIKE SHADE GAP,PA 17255-8840 "THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WELL BE USED FOR THAT PURPOSE.IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY, THIS IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT,BUT ONLY ENFORCEMENT OF A LIEN AGAINST PROPERTY." Your house(real estate) at 25 CARLA DRIVE,SHIPPENSBURG,PA 17257-8220 is scheduled to be sold at the Sheriff's Sale on 12/0412013 at 10:00 AM in the Cumberland County Courthouse,South Hanover Street,Carlisle,PA 17013 to enforce the court judgment of$170,559.28 obtained by ALLY BANK(the mortgagee)against you. In the event the sale is continued, an announcement will be made at said sale in compliance with PaR.C.P. Rule 3129.3. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sheriff's Sale, you must take immediate action: 1. The sale will be canceled if you pay to the mortgagee the back payments, late charges, costs and reasonable attorney's fees due. To find out how much you must pay, you may call: 215-563-7000 x1230. 2. You may be able to stop the sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the sale for good cause. You may also be able to stop the sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the sale. (See notice on page two on how to obtain an attorney.) YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND YOU HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriff's Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling 215-563-7000. 2. You may be able to petition the Court to set aside the sale if the bid price was grossly inadequate compared to the value of your property. 3. The sale will go through only if the buyer pays the Sheriff the full amount due in the sale. To find out if this has hippened, you may call 215-563-7000. 4. If the amount due from the Buyer is not paid to the Sheriff, you will remain the owner of the property as if the sale never happened. 5. You have the right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A proposed schedule of distribution of the money bid for your house will be prepared by the Sheriff not later than thirty (30) days after the sale. The schedule shall be kept on file with the sheriff and will be made available for inspection in his office. This schedule will state who will be receiving that money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after the filing of the proposed schedule. 7. You may also have other rights and defenses, or ways of getting your home back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE LISTED BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION CUMBERLAND COUNTY COURTHOUSE 2 LIBERTY AVENUE CARLISLE,PA 17013 (717) 249-3166 (800) 990-9108 SHORT DESCRIPTION By virtue of a Writ of Execuiion No. 13-1958-CIVIL TERM ALLY BANK V. KELBY D.BERRIER owner(s)of property situate in the TOWNSHIP OF SOUTHAMPTON, CUMBERLAND County,Pennsylvania, being 25 CARLA DRIVE,SHIPPENSBURG,PA 17257-8220 Parcel No.39-36-2436-003 (Acreage or street address) Improvements thereon: RESIDENTIAL DWELLING Judgment Amount: $170,559.28 Attorneys for Plaintiff Phelan Hallinan, LLP LEGAL DESCRIPTION ALL that certain lot of land situate in the Township of Southampton,County of Cumberland and Commonwealth of Pennsylvania,being Lot#23 in the Development known as South Mountain Estates,bounded and described as follows,to wit: BEGINNING at a point at common comer with Lot#22 at other land now or formerly of Joseph B. Hazzard and Esther M.Hazzard,his wife;thence by Lot#22, North 79 degrees 57 minutes East 158.35 feet to a point in the West side of Carla Drive;thence by the West side of Carla Drive by a curve whose radius is 1190.33 feet an arc distance of 99 feet by a long chord South 1.2 degrees 24 minutes 59 seconds East 98.97 feet to a point at common comer with Lot#24; thence by Lot#24, South-75 degrees 12 minutes 2 seconds West 147.99 feet to a point at other land now or formerly of Joseph B. Hazzard, et ux;thence by Hazzard land,North 1.7 degrees 42 minutes 34 seconds West 112.18 feet to a point,the place of BEGINNING. CONTAINING 16,051 square feet, per survey of J.H.Rife,R.E.,dated July 31, 1970. TITLE TO SAID PREMISES VESTED IN Kelby D. Berrier by David Thomas Goyt, H and Linda A. Goyt, h/w, dated 07/14/2004,recorded 0711612004 in Book 264 Page 978 PREMISES BEING: 25 CARLA DRIVE,SHWPENSBURG,PA 17257-8220 PARCEL NO. 39-36-2436-003 WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) NO. 13-1958 Civil COUNTY OF CUMBERLAND) CIVIL ACTION—LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt,interest and costs due ALLY BANK Plaintiff(s) From KELBY D.BERRIER (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 gamishee(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:$170,559.28 L.L.:$.50 Interest FROM 7/27/2013 TO DATE OF SALE($28.04 PER DIEM)-$3,673.24 Atty's Comm: Due Prothy:$2.25 Atty Paid:$290.70 Other Costs: Plaintiff Paid: Date:August 22,2013 David D.Buell,Prot notary­ (Seal) Deputy REQUESTING,PARTY: Name: MEREDITH WOOTERS,LLP Address: Phelan Hallinan,LLP 1617 H- K Boulevard,Suite 1400 One Penn Center Plaza Philadelphia,PA 19103 Attorney for:Plaintiff Telephone:215-563-7000 Supreme Court ID No.307207 4 1 1 2:P tIr PHELAN HALLINAN,LLP Attorney fo -1 j intiff f 4/i/O: / „ Adam H.Davis,Esq.,Id.No.2030348ER( A . '� 1617 JFK Boulevard, Suite 1400 ' ENNS IVQ COjf fj� One Penn Center Plaza YLVA/j/J rY Philadelphia,PA 19103 Adam.Davis@PhelanHallinan.com 215-563-7000 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA ALLY BANK CUMBERLAND COUNTY Plaintiff, COURT OF COMMON PLEAS v. CIVIL DIVISION KELBY D.BERRIER Defendant(s) No.: 13-1958-CIVIL TERM AFFIDAVIT OF SERVICE PURSUANT TO RULE 3129.2 COMMONWEALTH OF PENNSYLVANIA ) PHILADELPHIA COUNTY ) SS: As required by Pa. R.C.P.3129.2(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". A4--ns Adam H.Davis,Esq.,Id.No.203034 7f// /f! \ Attorney for Plaintiff Date: / IMPORTANT NOTICE: This property is sold at the direction of the plaintiff. It may not be 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. PH#766609 • e . . 1 u; 0 - Name and Pftctan Hallinan,Li? Address 161T JFK Boulevard,Suite 1400 w Or Sender One Penn Center Plaza z ill cs,,.,„ . Philadelphia PA 19103 AZK/SCS-12/04/2013 SALE Line Article Number Name of Addressee,Street,and Post Office Address PostsEc I •sus TENANT/OCCUPANT $0.45 r.. 25 CARLA DRIVE w r 7 01 7,' — SHIPPENSBURG,PA 17257.5220 2 to** BANK AMERICA CIO BAC $0.15 v3 r 1800 TAN)CANYON ROAD M/C:CA6 414-01-43 p:^ f • SIML VALLEY,CA 93063 3 ssss BANK OF AMERICA CIO CORELOGIC - $0.43 r.si.a -,r;1 CORELOGIC DRIVE MAIL STOP:ASGN • '. - , N b WESTI.AKE,TX 76262-9823 4 so** BANK OF AMERICA C/O DIANA DE AVILA $0.45 . 1800 TAPO CANYON ROAD SLVMI VALLEY.CA 93963' s 5 so** I)OMLITIC RELATIONS OF . CUMBERLAND COUNTY $0.45 13 NORTH HANOVER STREET CARLISLE PA 17013::. 6 s ' COMMONWEALTH OF PENNSYLVANIA " $0.45 DEPARTMENT OF WELFARE ;P.O.BOX 2675 HARRISBURG,PA 17105 7 • ' INTERNAL REVVNUESERVICE ADVISORY $0.45 19x tamer/AVENUE RCiOM 764 • .PIf1ROH.P4-15222 5 tsr'!'. 11 S.DEPARTMENT OFIUSTIf7. US:ATTORNEY FOR T11EMWDLE DISTRICT OF PA 30A$ m FEDERAL BUILDING 218 WALNUT STREET,SLi1TE 220 , ,. PO BOX 11754 ev HARRISBURG,PA 17108-1?54... ... A_ 1 Writ Team 1160 '1&al Numberot TONI Number ahead Patow7 t,Pa Mae of Tim rtll daWcma o'tome is addled on tl&m end ad intasatand attua E nwit l'h=tonna stoma adeouty pre* Pada Laud ay fade' Avowed a RIO tftce .fteeeinnt•N.r,rnocel la Udatandauci,naot eoonesaiaafedarwreats soda rh<prea Mai)Weo»rar monAraithu ttaaroxt ir•3.W.9[IU fa* amt. add'k•Wan of MEOW prrnre„nenx.Thu minimum indrmnly payahk un Eap,e014.;1 mcK'h ni.c a WO. I%muin ni fadwmitYarabk Is 525.00Ofot ten slued mail seal Moth COMO insmtre.SST tkmr+lk Mire Manua ... ROO S9 31 ad SI21 for limadiu s ateavempn il:Form 3877 Facsimile t {_Ili 0 �. PHELAN HALLINAN,LLP r^ Attorney for Plaintiff C a�'?.f n T��f �' 10: • One Penn Center Plaza �o , , M N 1617 JFK Boulevard, Suite 1400 - �!v' . L A f cot ',�' Philadelphia, PA 19103 John.Kolesnik @phelanhallinan.com 215-563-7000 • ALLY BANK • CUMBERLAND COUNTY Plaintiff COURT OF COMMON PLEAS v. • CIVIL DIVISION KELBY D. BERRIER NO. 13-1958-CIVIL TERM Defendant MOTION FOR SERVICE OF NOTICE OF SALE PURSUANT TO SPECIAL ORDER OF COURT Plaintiff, by its counsel, Phelan Hallinan, LLP,petitions this Honorable Court for an Order directing service of the Notice of Sale upon the above-captioned Defendant, KELBY D. BERRIER, by certified mail and regular mail to KELBY D. BERRIER at 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220and posting 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220 and publication pursuant to PA.R.C.P. 3129.2 (D) and in support thereof avers the following: 1. A Sheriffs Sale of the mortgaged property involved herein has been scheduled for December 4, 2013. 2. Pennsylvania Rule of Civil Procedure (Pa.R.C.P.) 3129.2 requires that the Defendant be served with a notification of Sheriffs Sale at least thirty (30) days prior to the scheduled sale date. 3. Attempts to serve Defendant, KELBY D. BERRIER, with the Notice of Sale at the mortgaged premises, 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220, have been unsuccessful, as indicated by the Return of Service attached hereto as Exhibit "A".No service made as the property is vacant. 4. Attempts to serve Defendant, KELBY D. BERRIER, with the Notice of Sale at 23323 CROGHAN PIKE, SHADE GAP, PA 17255-8840 have been unsuccessful, as indicated by the Return of Service attached hereto as Exhibit "A". No service made was made as the Defendant moved from the said address. 5. Pursuant to Pa.R.C.P. 430, Plaintiff has made a good faith effort to locate the Defendant. An Affidavit of Reasonable Investigation setting forth the specific inquiries made and the results therefrom is attached hereto as Exhibit "B". 6. Plaintiff contacted the Prothontary's Office and as of October 28, 2013, no Judge has previously entered a ruling in this case. 7. In accordance with CUMBERLAND County Local Rule 208.3(9), Plaintiff sent a copy of its Proposed Motion for Special Service and Order to the Defendant on November 8, 2013 and requested Defendant's concurrence. Plaintiff did not receive any written response from the Defendant. A true and correct copy of Plaintiffs November 8, 20131etter and postmarked certificate of mailing pursuant to Local Rule 208.3(9) attached hereto, made part hereof, and marked Exhibit "C" 8. Plaintiff submits that it has made a good faith effort to locate the Defendant, KELBY D. BERRIER,but has been unable to do so. WHEREFORE, Plaintiff respectfully requests that the allowance of service of the Notice of Sale upon Defendant in accordance with Pa.R.C.P., Rule 430 by certified and regular mail to KELBY D. BERRIER at 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220and posting 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220 and by publication. Phelan Hall' , LLP DATE: I'//q/11 By: , J. f ichael Kolesnik, Esquire ID No: 308877 Attorney for Plaintiff • PHELAN HALLINAN, LLP Attorney for Plaintiff One Penn Center Plaza 1617 JFK Boulevard, Suite 1400 Philadelphia,PA 19103 John.Kolesnik @phelanhallinan.com 215-563-7000 ALLY BANK • CUMBERLAND COUNTY Plaintiff COURT OF COMMON PLEAS • v. CIVIL DIVISION • KELBY D. BERRIER NO. 13-1958-CIVIL TERM • Defendant PLAINTIFF'S MEMORANDUM OF LAW Pursuant to Pennsylvania Rule of Civil Procedure Rule 3129.2, it is necessary in a foreclosure action for the Sheriff or Process Server to serve upon the Defendant Notice of the Sale of the mortgaged premises. Specifically, Pa.R.C.P. Rule 3129.2(c)provides in applicable part as follows: The written notice shall be prepared by the plaintiff, shall contain the same information as the handbills or may consist of the handbill and shall be served at least thirty days before the sale on all persons whose names and addresses are set forth in the affidavit required by Rule 3129.1. (1) Service of the notice shall be made: (i) upon a defendant... (A) by the sheriff or by a competent adult in the manner prescribed by Rule 402(a) for the service of original process upon a defendant, or (B) by the plaintiff mailing a copy in the manner prescribed by Rule 403 to the addresses set forth in the affidavit; or (C) if service cannot be made as provided in subparagraph(A) or (B),the notice shall be served pursuant to special order of court as prescribed by Rule 430, except that if original process was served pursuant to a special order of court under Rule 430 upon the defendant in the judgment, the notice may be served upon that defendant in the manner provided by the order for service of original process without further application to the court. Because the whereabouts of Defendant, KELBY D. BERRIER, are unknown, a reasonable investigation of his/her last known address was made in accordance with Pa.R.C.P. 430(a). Pennsylvania Rule of Civil Procedure Rule 430(a)provides as follows: (a) If service cannot be made under the applicable rule the Plaintiff may move the court for a special order directing the method of service. The motion shall be accompanied by an affidavit stating the nature and extent of the investigation which has been made to determine the whereabouts of the defendant and the reasons why service cannot be made. Note: A sheriff's return of"not found" or the fact that a defendant has moved without leaving a new forwarding address is insufficient evidence of concealment. Gonzales v. Polis, 238 Pa.Super. 362, 357 A.2d 580 (1976). Notice of intended adoption mailed to last known address requires a"good faith effort" to discover the correct address. Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976). An illustration of good faith effort to locate the defendant includes (1) inquiries of postal authorities including inquiries pursuant to the Freedom of Information Act, 39 C.F.R. Part 265, (2) inquiries of relatives, neighbors, friends, and employers of the defendant, and(3) examinations of local telephone directories, voter registration records, local tax records and motor vehicle records. As indicated by the of return of service, hereto as Exhibit "A",the process server has been unable to serve the Notice of Sale. A good faith effort to discover the whereabouts of the Defendant has been made as evidenced by the attached Affidavit of Reasonable Investigation, marked as Exhibit "B". WHEREFORE, Plaintiff respectfully requests the allowance of service of the Notice of Sale upon Defendant in accordance with Pa.R.C.P. Rule 430 by certified and regular mail to KELBY D. BERRIER at 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220 and posting 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220 and by publication pursuant to PA.R.C.P. 3129.2. Phelan H.11in. , LLP DATE: /09/6 By: / J. V h el Kolesnik, Es Id.No.308877 J c a q , •ttorney for Plaintiff PHELAN HALLINAN,LLP Attorney for Plaintiff One Penn Center Plaza 1617 JFK Boulevard, Suite 1400 Philadelphia,PA 19103 John.Kolesnik @phelanhallinan.com 215-563-7000 • ALLY BANK • CUMBERLAND COUNTY Plaintiff • COURT OF COMMON PLEAS • v. CIVIL DIVISION KELBY D. BERRIER NO. 13-1958-CIVIL TERM • Defendant CERTIFICATE OF SERVICE I hereby certify that true and correct copies of the foregoing Motion for Service of Notice of Sale Pursuant to Special Order of Court, Proposed Order, Memorandum of Law, Certification of Service and Exhibits in the above captioned matter were sent by first class mail,postage prepaid to the following interested parties on the date indicated below. KELBY D. BERRIER 25 CARLA DRIVE SHIPPENSBURG, PA 17257-8220 Phelan Hallinan, LLP DATE: ill/tip By: Jo ichael Kolesnik, Esq., Id.No.308877 ttorney for Plaintiff EXHIBIT "A" AFFIDAVIT OF SERVICE PLAINTIFF CUMBERLAND COUNTY ALLY BANK PH#766609 DEFENDANT SERVICE TEAM/lxh KEL.BY D.BERRIER COURT NO.:13-1958-CIVIL TERM SERVE KELBY D.BERRIER AT: TYPE OF ACTION 25 CARLA DRIVE XX Notice of Sheriff's Sale SHIPPENSBURG,PA 17257-8220 SALE DATE: December 4,2013 SERVED Served and made known to KELBY D.BERRIER,Defendant on the_day of ,,20 at o'clock M.,at ,in the manner described below: Defendant personally served, _Adult family member with whom Defendant(s)reside(s). Relationship is__„.,.___„__._. _Adult in charge of Defendant's residence who refused to give name or relationship. _Manager/Clerk of place of lodging in which Defendant(s)reside(s). _Agent or person in charge of Defendant's office or usual place of business. an officer of said Defendant's company. Other: Description: Age Height Weight Race Sex Other ,_,_ I, ,a competent adult,hereby verify that I personally handed a true and correct copy of the Notice of Sherifils Sale in the manner as set forth herein, issued in the captioned case on the date and at the address indicated above. I understand that this statement is made subject to the penalties of 18 Pa.C.S.Sec.4904 relating to unsworn falsification to authorities. DATE: NAME: PRINTED NAME: TITLE: NOT TRVED. On the ( day of J 201,at 4 I'LiGelock M.,I, > 96"6-14°,a competent adult hereby state that De?endyant N–Z)F cause: XVacant !Does Not Exist _Moved v Does Not Reside(Not Vacant) No Answer on at _... , at —Service Refused Other: I understand that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unswom falsification to authorities. BY: PRINTED N E: .et” ATTORNEY FOR PLAINTIFF Phelan Hallinan,LLP 1617 MK Boulevard,Suite 1400 One Penn Center Plaza Philadelphia,PA 19103 (215)563-7000 1 • AFFIDAVIT OF SERVICE PLAINTIFF CUMBERLAND COUNTY ALLY BANK PH#766609 DEFENDANT SERVICE TEAM/lxh KELBY D.BERRIER COURT NO.: 13-1958-CIVIL TERM SERVE KELBY D.BERRIER AT: TYPE OF ACTION 23323 CROGHAN PIKE XX Notice of Sheriff's Sale SHADE GAP,PA 17255-8840 SALE DATE: December 4,2013 SERVED Served and made known to KELBY D.BERRIER,Defendant on the_day of 20 ,at ,o'clock .M.,at ,in the manner described below: ...........Defendant personally served. �.Adult family member with whom Defendant(s)reside(s). Relationship is _Adult in charge of Defendant's residence who refused to give name or relationship, _Manager/Clerk of place of lodging in which Defendant(s)reside(s). _Agent or person in charge of Defendant's office or usual place of business. an officer of said Defendant's company. Other: Description: Age Height ^ Weight_...._. Race Sex ,Other I, ,a competent adult,hereby verify that I personally handed a true and correct copy of the Notice of Sheriffs Sale in the manner as set forth herein, issued in the captioned case on the date and at the address indicated above. I understand that this statement is made subject to the penalties of 18 Pa.C.S.Sec.4904 relating to uns worn falsification to authorities. DATE: NAME: PRINTED NAME: TITLE: NOT SERVED On the day of � ,20j ata.O •FJJ o'clock- .M.,I, G A Z,F,F_.B/a competent adult hereby state that Defendant N 'I UND because: Vacant Does Not Exist /Moved Does Not Reside(Not Vacant) _No Answer on at _.__. at Service Refused Other: I understand that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. BY ...+111i.'°,4 r PRINTED NAME: 2..MA . ATTORNEY FOR PLAINTIFF Phelan Hallinan,LLP I617 JFK Boulevard,Suite 1400 One Penn Center Plaza Philadelphia,PA 19103 (215)563-7000 • Process Server Check List If Service Is Made : Spouses Names if Applicable Wife : Husband: Divorced: Yes ) No No Service Made 1 . Vacant : Yes No ( )</) 2 . Is there a name on the mailbox? Is it the defendants? no 3 . Neighbor Contact : Yes ) No ( Left Side : Right Side : 4 . For Sale Sign: Yes ) No ( Realtor Name : Company Name : Phone Number: 5 . Car in Drive Way Yes ) No ( Plate Number: kei by P\ Sir\ &piled Pviilf\ack sc" vk le_ 01 rn 0 uezt 61-±-0i h 0 - hr ry-104-4,1QA She d oes Ocup L&) Vu."-- (New u42_01,.• EXHIBIT "B " AFFIDAVIT OF GOOD FAITH INVESTIGATION File Number: 766609 Attorney Firm: Phelan Hallinan,LLP Subject: Kelby D. Berrier Property Address: 25 Carla Drive,Shippensburg,PA 17257 Possible Mailing Address: 23323 Croghan Pike,Shade Gap,PA 17255 I.CREDIT INFORMATION A. SOCIAL SECURITY NUMBER Our search verified the following information to be true and correct Kelby D.Berrier-xxx-xx-3130 B. EMPLOYMENT SEARCH Kelby D.Berrier-A review of the credit reporting agencies provided no employment information. C. INQUIRY OF CREDITORS Our inquiry of creditors indicated that Kelby D.Berrier reside(s) at:23323 Croghan Pike,Shade Gap, PA 17255. II.INQUIRY OF TELEPHONE COMPANY A. DIRECTORY ASSISTANCE SEARCH Our office searched directory assistance databases,which indicated that Kelby D. Berrier reside(s)at: 23323 Croghan Pike,Shade Gap,PA 17255.On 09-17-13 our office made several telephone calls to the subject's phone number(717) 300-3154 and received the following information:answering machine. B. On 09-17-13 our office made a telephone call to a possible phone number of the subject(s) (717) 220-4542 and received the following information:not in service. On 09-17-13 our office made several telephone calls to a possible phone number of the subject(s) (717) 300-1373 and received the following information:answering machine. On 09-17-13 our office made a telephone call to a possible phone number of the subject(s) (717) 691-2611 and received the following information:spoke with an unidentified female who could not confirm the whereabouts of the subject.On 09-17- 13 our office made a telephone call to a possible phone number of the subject(s) (814) 259-3890 and received the following information:not in service. On 09-17-13 our office made several telephone calls to a possible phone number of the subject(s) (814) 259-0080 and received the following information: answering machine. III. INQUIRY OF NEIGHBORS On 09-17-13 our office made several phone calls in an attempt to contact Melany L. Froio (717) 300-3232,42 Carla Drive,Shippensburg,PA 17257: answering machine. On 09-17-13 our office made a phone call in an attempt to contact Robert E. Barnhart (717)530-1048,21 Carla Drive,Shippensburg,PA 17257: disconnected. . .� ,. On 09-17-13 our office made several phone calls in an attempt to contact Steven L. Kushner Jr. (717)532-6144,38 Carla Drive,Shippensburg,PA 17257: answering machine. On 09-17-13 our office made several phone calls in an attempt to contact Johnny L. Devlin(814) 259-3809, 23306 Croghan Pike,Shade Gap,PA 17255:no answer. On 09-17-13 our office made several phone calls in an attempt to contact Ellen J. Bream(301) 797-1520,23330 Croghan Pike,Shade Gap,PA 17255:answering machine. On 09-17-13 our office made a phone call in an attempt to contact Dale L.Glunt(814) 259-3525,23289 Croghan Pike,Shade Gap,PA 17255:spoke with an unidentified male who could not confirm that the subject reside(s) at 23323 Croghan Pike,Shade Gap,PA 17255. IV.ADDRESS INQUIRY A. NATIONAL ADDRESS UPDATE On 09-17-13 we reviewed the National Address database and found the following information: Kelby D. Berrier-23323 Croghan Pike,Shade Gap,PA 17255. B. ADDITIONAL ACTIVE MAILING ADDRESSES Per our inquiry of creditors,the following is a possible mailing address: 23323 Croghan Pike,Shade Gap,PA 17255. V. OTHER INQUIRIES A. DEATH RECORDS As of 09-17-13 Vital Records and all public databases have no death record on file for Kelby D. Berrier. VI. ADDITIONAL INFORMATION OF SUBJECT A. YEAR OF BIRTH Kelby D. Berrier-1971 *Our accessible databases have been checked and cross-referenced for the above named individual(s). *Please be advised our database information indicates the subject resides at the current address. 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 pent_lties of : P Sec.49044-elating to unsworn falsification to authorities. „Ad, The above information is obtained from available public records and we are only liable for the cost of the affidavit • • • • • • • • • EXHIBIT 66f L'� 9 9 • • • • * r o> z t451C'j if ' to r C ► x L .• . I ii ; ail; 1 °° 1 1 : if 11 gi„Tv b 1 Er E i i r� h p 4 40 a r.r A a A Isere a gips illi g gli ,ta.' • liii! •Pill 1 III tilt . „...I Fit $ 0 ' i lit , 4- , . 8 ;;;;,,...1 .,•,:-... / t... ..�MIM rrwi/,. " � A'. zip Sao . .. • az l►t $ »fig° ..1 iti . ... 0001301191NOV 08 2013 Phelan Hallinan, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 FAX#: 215-568-7616 E-mail lily.hainey @phelanhallinan.com LILY HAINEY, Legal Assistant, Ext. 1401 Representing Lenders in Service Department Pennsylvania November 8,2013 KELBY D. BERRIER 25 CARLA DRIVE SHIPPENSBURG, PA 17257-8220 RE: ALLY BANK v. KELBY D. BERRIER Premises Address: 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220 CUMBERLAND County,No. 13-1958-CIVIL TERM Dear Defendant, Enclosed please find a true and correct copy of my proposed Motion for Special Service and Order. In accordance with CUMBERLAND County Local Rule 208.3(9), I am seeking concurrence with the requested relief that is, Special Service. Please respond to me within one week, by November 15, 2013. Should you have any further questions or concerns,please do not hesitate to contact me. Otherwise,please be guided accordingly. Very truly yours, LILY HAINEY,Legal Assistant for Phelan Hallinan,LLP 766609 I IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA ALLY BANK • • CIVIL DIVISION Plaintiff • • NO. 13-1958-CIVIL TERM u, V. c_ • KELBY D. BERRIER _' • cr ra Defendant = _ ORDER 11=-7) _�, `-,°' Ix.:Ix.: "'' ' AND NOW,this 2-7'' day of Na , 2013, after ::±1 r, consideration of Plaintiff's Motion for Service of Notice of Sale Pursuant to Special Order of Court, it is hereby: ORDERED that pursuant to Pa. R.C.P. 430(a), service of the Notice of Sale is permitted on Defendant KELBY D. BERRIER by: REGULAR MAIL TO KELBY D. BERRIER at 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220 Service by mail is complete upon the date of mailing a-,a -I-. 2 33 Z 3 C,Dy,a, P% sNu,k. G-,.r, , PA ► Z � �f CERTIFIED MAIL TO KELBY D. BERRIER at 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220 Service by mail is complete upon the date of mailing POSTING 25 CARLA DRIVE, SHIPPENSBURG, PA 17257- 8220 PUBLICATION WHICH SHALL BE IN ACCORDANCE WITH PA.R.C.P. 3129.2 (D). BY THE ► 1 URT: /r J. PH# 766609 /CC PHELAN HALLINAN, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 KELBY D. BERRIER 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220 Copy ma, /{d Ili37/l3 paG/- ril -OFt=TC OF THE PROTHONOTAI Y Phelan Hallinan, LLP 2 t3 DEC 10 An 11: 45 Justin F. Kobeski, Esq., Id. No.200392 Al I'ORNEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 1400 CUMBERLAND COUNTY One Penn Center Plaza PENNSYLVANIA Philadelphia, PA 19103 justin.kobeski@phelanhallinan.com 215-563-7000 ALLY BANK • Court of Common Pleas Plaintiff • • Civil Division v. • CUMBERLAND County KELBY D. BERRIER • • No.: 13-1958-CIVIL TERM Defendant • PLAINTIFF'S MOTION TO REASSESS DAMAGES Plaintiff, by its Attorneys, Phelan Hallinan, 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 April 15, 2013. 2. Judgment was entered on July 26, 2013 in the amount of$170,559.28. A true and correct copy of the praecipe for judgment is attached hereto, made part hereof, and marked as Exhibit "A". 3. Pursuant to Pennsylvania Rule of Civil Procedure 1037(b)(1), a default judgment containing a dollar amount must be entered for the amount claimed in the complaint and any item which can be calculated from the complaint, i.e. bringing the interest current. However, new items cannot be added at the time of entry of the judgment. 4. The Property is listed for Sheriffs Sale on December 4, 2013. 766609 5. 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 $144,000.00 Interest Through December 5, 2013 $26,556.66 Late Charges $955.50 Legal fees $1,675.00 Cost of Suit and Title $597.24 Property Preservation $2,015.50 Appraisal/Brokers Price Opinion $110.00 Escrow Deficit $7,094.17 TOTAL $183,004.07 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 Plaintiff's 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 December 5, 2013 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. 766609 WHEREFORE, Plaintiff respectfully requests that this Honorable Court amend the judgment as requested. Phelan Hallinan, LLP DATE: 2/43 By: Justin F o -ski, Esquire AT ,• • ' FOR PLAINTIFF 766609 Phelan Hallinan, LLP Justin F. Kobeski, Esq., Id. No.200392 ATTORNEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 justin.kobeski@phelanhallinan.com 215-563-7000 ALLY BANK : Court of Common Pleas • Plaintiff • Civil Division v. : CUMBERLAND County • KELBY D. BERRIER • No.: 13-1958-CIVIL TERM Defendant • MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO REASSESS DAMAGES I. BACKGROUND OF CASE KELBY D. BERRIER 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 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220. 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 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 766609 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. II. LEGAL ARGUMENT TO AMEND PLAINTIFF'S IN REM JUDGMENT It is settled law in Pennsylvania that the Court may exercise its equitable powers to control the enforcement of a judgment and to grant any relief until that judgment is satisfied. 20 P.L.E., Judgments § 191. Stephenson v. Butts, 187 Pa.Super. 55, 59, 142 A.2d 319, 321 (1958). Chase Home Mortgage Corporation of the Southwest v. Good, 537 A.2d 22, 24 (Pa.Super. 1988). The Pennsylvania Superior Court has repeatedly cited the right of a foreclosing creditor to amend its judgment prior to the Sheriffs 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 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, 766609 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 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). 766609 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 Sheriffs 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. 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. 766609 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 Plaintiffs 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. Fetner,the Superior Court held that an attorney's fee of ten percent of the original mortgage amount is not unconscionable. 410 A.2d 344 (Pa. Super. 1979). The Superior Court cited Fetner in confirming that an attorney's fee of ten percent included in the judgment in mortgage foreclosure action was reasonable. Citicorp v. Morrisville Hampton Realty, 662 A.2d 1120 (Pa. Super. 1995). Plaintiffs legal fees are not a percentage but are significantly less than what is permitted by Pennsylvania law. 766609 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 Sheriffs 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 Sheriffs sale date, as their interests will be divested by the Sheriffs sale. Accordingly, the modest sums Plaintiff has incurred for the costs of suit and title were necessary pursuant to Pennsylvania law. The amounts were reasonable and actually incurred. The mortgage and Pennsylvania law permit Plaintiff to recover these sums through its foreclosure action. As the foreclosure action is in rem only, Plaintiff recovers its judgment from the sale of the property, not out of the Defendant's pockets. Plaintiff should recover the costs of suit and title in their entirety, which will not cause harm to the Defendants. 766609 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. 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. 766609 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. Phelan Hallinan LLP DATE: 9 By: 4110 Justin F obeski, Esquire Atto• ey for Plaintiff 766609 Exhibit "A" 766609 • PHELAN HALLINAN,LLP Attorney for Plaintiff Jonathan Lobb,Esq.,Id. No.312174 1617 JFK Boulevard,Suite 1400 e ; One Penn Center Plaza t,-; eat -'' Philadelphia,PA 19103 . Jonathan.Lobb @phelanhallinan.com G ;, 215-563-7000 r�'.s ALLY BANK : CUMBERLAND COUNTY r 2 vs. : COURT:OF COMMON PLEA , ) cif ... ' KELBY D.BERRIER : CIVIL DIVISION No. 13-1958•CIVIL TERM. bbniv, . cr,� 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 KELBY D.BERRIER, Defendant for failure to file an Answer to Plaintiff's Complaint within 20 days from service thereof andyfor foreclosure and sale of the mortgaged premises,and assess Plaintiff's damages as follows: As set forth in Complaint $170,559.28 TOTAL . Attorney File Copy $170,559.28 I:heareby certify that(1)qi@l9gfgaillt s last known addresses are 23323 GROGHAN.. PIKE,SHADE GAP,PA 17255-8840 and 25 CARLA DRIVE,SHIPPENSBURG,PA 17257 8220,and(2)that notice has been given in accordance with Rule Pa.R.C.P 237.1. Date ? � 51 2614 J,f than Lobb,Esq.,Id. No.312174 for Plaintiff DAMAGES ARE HEREBY ASSESSED AS INDICA l DATE: -.42/42A3 PH'1066609 PROTHONOTARY 766609. • Exhibit "B" 766609 PHELAN HALLINAN, LLP 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 (215) 563-7000 FAX#: (215) 563-3459 Phelan Hallinan, LLP Representing Lenders in Pennsylvania November 21,2013 KELBY D. BERRIER 23323 CROGHAN PIKE SHADE GAP,PA 17255-8840 RE: ALLY BANK v. KELBY D. BERRIER Premises Address: 25 CARLA DRIVE SHIPPENSBURG,PA 17257 CUMBERLAND County CCP,No. 13-1958-CIVIL TERM Dear Defendant, Enclosed please find a true and correct copy of my proposed Motion to Reassess Damages and Order. In accordance with Cumberland County Local Rule 208.3(9), I am seeking your concurrence with the requested relief that is,increasing the amount of the judgment. Please respond to me within 5 days,by 11/27/2013. Should you have further questions or concerns,please do not hesitate to contact me. Otherwise,please be guided accordingly. Very tt yours, Justin F. .eski,Esq., Id.No.200392 Attorn$ j Plaintiff / En ore / 766609 • 0 CLO zZ Aotat6Ltgclood • , •7, —. - ,..o o� -Z5O As C01-63 d12 :+v(4...1 _. s 1Jd<C39vmL Uri�ST1 . r. ,. {s,, . . ,g _ i 0 .kn tf) 441 WI 72,i 81 • Gm a T9 " li II I I i A k gI . a, a�,pffi g t ta 2 o il . tl i il a o c w 'a PIK <4 v ' t, 04 .. a s N Qria ) 4h N � L a a4 a i . o. -- 0 a, x r rn k r`�t rn .� r a 1 4 % # it u . . U w /f. a la Q a ri ... „. .y....vc..<,•:.n. .:. . ,' .a ,y..;. r« a::.: :��.^. •f:i�+i» r:;�� i+' " s.,:,.::- , ii ' x; "i>,.:µ'V :• .`%::".-'. ..,.. se4. y. r.vn;rti, » F`-- i u r',:}. L.•!s::y :" .. « » i• «..•ir •:: y. q + '1 k✓ "1•;.; «.y .? y in Phelan Hallinan, LLP Justin F. Kobeski, Esq., Id. No.200392 ATTORNEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 justin.kobeski@phelanhallinan.com 215-563-7000 ALLY BANK • Court of Common Pleas Plaintiff • • Civil Division v. • • CUMBERLAND County KELBY D. BERRIER • • No.• 13-1958-CIVIL TERM Defendant 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. KELBY D. BERRIER KELBY D. BERRIER 23323 CROGHAN PIKE 25 CARLA DRIVE SHADE GAP, PA 17255-8840 SHIPPENSBURG, PA 17257-8220 KELBY D. BERRIER 128 SHIPPENSBURG MOBILE ESTATE SHIPPENSBURG, PA 17257-9534 Phelan Hallinan,LLP DATE: ) 9 I By: 4,0„ 3 Justin F. •beski, Esquire ATTO'. EY FOR PLAINTIFF 766609 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ALLY BANK Court of Common Pleas • Plaintiff Civil Division • v. CUMBERLAND County KELBY D. BERRIER • No.: 13-1958-CIVIL TERM Defendant • RULE AND NOW, this /(r ' day of 2013, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting Plaintiffs Motion to Reassess Damages. Defendant shall have twenty (20) days from the date of this Order to file a response to Plaintiffs Motion to Reassess Damages. If no response is filed with the Court, Plaintiff may file a Motion to Make Rule Absolute and no hearing will be scheduled on this matter. BY TH- COURT J. rn — C CTS ) ems, U - . " i 766609 �stin F. Kobeski,Esq.,Id.No.200392 Phelan Hallinan,LLP 1617 JFK Boulevard, Suite 1400 Philadelphia,PA 19103 TEL: (215)563-7000 FAX: (215)563-3459 �LBY D. BERRIER -ELBY D. BERRIER 23323 CROGHAN PIKE 25 CARLA DRIVE SHADE GAP,PA 17255-8840 SHIPPENSBURG, PA 17257-8220 D. BERRIER 128 SHIPPENSBURG MOBILE ESTATE SHIPPENSBURG, PA 17257-9534 tES / 1 C:7110/13 766609 766609 Z 2013 DEC 27 AIM 9: 54 CUMBERLAND COUNTY PENNSYLVANIA Phelan Hallinan, LLP John D. Krohn, Esq., Id. No.312244 ATTORNEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 j ohn.krohn @phelanhallinan.com 215-563-7000 ALLY BANK Court of Common Pleas Plaintiff vs. Civil Division KELBY D. BERRIER CUMBERLAND County Defendant No.: 13-1958-CIVIL TERM CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the Court's December 16, 2013 Rule directing the Defendant to show cause as to why Plaintiffs Motion to Reassess Damages should not be granted was served upon the following individual on the date indicated below. KELBY D. BERRIER KELBY D. BERRIER 23323 CROGHAN PIKE 25 CARLA DRIVE SHADE GAP, PA 17255-8840 SHIPPENSBURG, PA 17257-8220 KELBY D. BERRIER 128 SHIPPENSBURG MOBILE ESTATE SHIPPENSBURG, PA 17257-9534 / Phelan Hal ' an, LLP DATE: /Z.Ak/43 By: John D. K/ohn,Esq., Id. No.312244 Attorney for Plaintiff 766609 t ;EE r'�3(..' ,HONQ1 d. 2614 JAN 10 !U: 59 CUMBERLAND COUNTY PENNSYLVANIA Phelan Hallinan, LLP John D. Krohn, Esq., Id. No.312244 ATTORNEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 john.krohn@phelanhallinan.com 215-563-7000 ALLY BANK • Court of Common Pleas • Plaintiff Civil Division vs. CUMBERLAND County • KELBY D. BERRIER • No.: 13-1958-CIVIL TERM • Defendant MOTION TO MAKE RULE ABSOLUTE ALLY BANK, 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: 1. A Motion to Reassess Damages was filed with the Court on December 10, 2013. 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 November 22, 2013 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. 766609 3. A Rule was issued by the Honorable Kevin A. Hess on or about December 16, 2013 directing the Defendant to show cause by January 6, 2013 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. 4. The Rule to Show Cause was timely served upon all parties on December 26, 2013 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 January 6, 2013. WHEREFORE, Plaintiff requests that this Honorable Court make the Rule to Show Cause absolute and grant Plaintiff's Motion to Reassess Damages. Phelan Hallinan, LLP DATE: 1/9/1 y By: John D. Kro , Esq., Id.No.312244 Attorney for Plaintiff 766609 • • Exhibit "A" 766609 PHELAN HALLINAN, LLP 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103 (215)563-7000 FAX#: (215)563-3459 Phelan Hallinan, LLP Representing Lenders in Pennsylvania November 21,2013 KELBY D.BERRIER 23323 CROGHAN PIKE SHADE GAP,PA 17255-8840 RE: ALLY BANK v.KELBY D.BERRIER Premises Address:25 CARLA DRIVE SHIPPENSBURG,PA 17257 CUMBERLAND County CCP,No. 13-1958-CIVIL TERM 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 11/27/2013. Should you have further questions or concerns,please do not hesitate to contact me. Otherwise,please be guided accordingly. Very yours, Justin F, +eski,Esq.,Id.No.200392 Attorn= l Plaintiff / En osare / 766609 • O NO ki t Zfl r, tom. ? . 089700 S. £Gi6I dIZ ;: - - �� ^ I4, L C saMOS.;31114<< IS��'sf ^TT4 ;i A o �' d o s A. (A VD VS VI ri_ a] m 14 iiI 1111 ill§ c 's g.`o mn .2 0 i1tI y x p H o w 13, N W 114 I 2 °° .0 ar i e~ pq e~ ..... a. al Op a ill ° ga a -ga wa ge a as IZ 44gididA0 > 44 A. tai iA. .. taM w 51x5 . i cs Ix ca t0.7 AD A � 04 ul A›,, • o ' � AdG A ZA °" Za 'V g al ty get n r t 5 g x rg g gii I ,' .F ' et Z * . v + * i..- 1 I "''0 1 i x Z4.0 .,-3 -.a i Exhibit "B" 766609 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA ALLY BANK Court of Common Pleas Plaintiff • Civil Division v. • CUMBERLAND County KELBY D. BERRIER No.: 13-1958-CIVIL TERM Defendant RULE AND NOW,this jL`r'l day of 1 2013, a Rule is entered upon the Defendant to show cause why an Order should not be entered granting Plaintiff's Motion to Reassess Damages. Defendant shall have twenty (20) days from the date of this Order to file a response to Plaintiffs Motion to Reassess Damages. If no response is filed with the Court,Plaintiff may file a Motion to Make Rule Absolute and no hearing will be scheduled on this matter. BY THE COURT Y r %r vs, _ * ' + J. rn CI7 :. r as tea 766609 Justin F.Kobeski,Esq., Id.No.200392 Phelan Hallinan,LLP 1617 JFK Boulevard, Suite 1400 Philadelphia,PA 19103 TEL: (215) 563-7000 FAX: (215)563-3459 KELBY D. BERRIER KELBY D.BERRIER 23323 CROGHAN PIKE 25 CARLA DRIVE SHADE GAP, PA 17255-8840 SHIPPENSBURG,PA 17257-8220 KELBY D. BERRIER 128 SHIPPENSBURG MOBILE ESTATE SHIPPENSBURG,PA 17257-9534 766609 766609 • • Exhibit "C" ! 'jj-�}r}'iii HE PRO MONO Tfs.f� 2013 DEC 27 IN 9: 54 CUMBERLAND COUNTY PENNSYLVANIA Phelan Hallinan,LLP John D. Krohn, Esq., Id. No.312244 ATTORNEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 john.krohn@phelanhallinan.com 215-563-7000 ALLY BANK • Court of Common Pleas Plaintiff • vs. • Civil Division • KELBY D. BERRIER • CUMBERLAND County Defendant • No.: 13-1958-CIVIL TERM CERTIFICATION OF SERVICE I hereby certify that a true and correct copy of the Court's December 16, 2013 Rule directing the Defendant to show cause as to why Plaintiffs Motion to Reassess Damages should not be granted was served upon the following individual on the date indicated below. KELBY D. BERRIER KELBY D. BERRIER 23323 CROGHAN PIKE 25 CARLA DRIVE SHADE GAP, PA 17255-8840 SHIPPENSBURG,PA 17257-8220 KELBY D. BERRIER 128 SHIPPENSBURG MOBILE ESTATE SHIPPENSBURG, PA 17257-9534 / Phelan Hal ' an, LLP DATE: 12./241,3 By: John D. hn,Esq., Id.No.312244 Attorney for Plaintiff 766609 Phelan Hallinan, LLP John D. Krohn, Esq., Id. No.312244 ATTORNEY FOR PLAINTIFF 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 john.krohn@phelanhallinan.com 215-563-7000 ALLY BANK • Court of Common Pleas • Plaintiff Civil Division • vs. • CUMBERLAND County KELBY D. BERRIER No.: 13-1958-CIVIL TERM • Defendant CERTIFICATION OF SERVICE I hereby certify that true and correct copies of Plaintiffs Motion to Make Rule Absolute was served upon the following individual on the date indicated below. KELBY D. BERRIER KELBY D. BERRIER 23323 CROGHAN PIKE 25 CARLA DRIVE SHADE GAP, PA 17255-8840 SHIPPENSBURG, PA 17257-8220 KELBY D. BERRIER 128 SHIPPENSBURG MOBILE ESTATE SHIPPENSBURG, PA 17257-9534 Phelan Hallinan, LLP DATE: /19 II H By: John D. Kro , Esq., Id. No.312244 Attorney for Plaintiff 766609 ai IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVAI IA"19 E..R L AND C O U i; PENNSYLVANIA ALLY BANK Court of Common Pleas Plaintiff Civil Division VS. CUMBERLAND County KELBY D. BERRIER No.: 13-1958-CIVIL TERM Defendant ORDER AND NOW, this �� day of '/ 7 , 2014, upon consideration of Plaintiffs Motion to Make Rule Absolute, it is hereby ORDERED and DECREED, that the Rule entered upon Defendant shall be and is hereby made absolute and Plaintiff s Motion to Reassess Damages in the above captained matter is hereby GRANTED. The Prothonotary is ORDERED to amend the judgment and the Sheriff is ORDERED to amend the writ nunc pro tunc as follows: Principal Balance $144,000.00 Interest Through December 5, 2013 $26,556.66 Late Charges $955.50 Legal fees $1,675.00 Cost of Suit and Title $597.24 Property Preservation $2,015.50 Appraisal/Brokers Price Opinion $110.00 Escrow Deficit $7,094.17 TOTAL $183,004.07 Plus interest at six percent per annum. Note: The above figure is not a payoff quote. Sheriffs commission is not included in the above figure. • B EC J. Nui�k) J. 766609 PHELAN HALLINAN, LLP Attorney for Plaintiff 2 fi FEB "14 A N I I: 02 1617 JFK Boulevard, Suite 1400 CUMBERLAND COUNTY One Penn Center Plaza PENNSYLVANIA Philadelphia, PA 19103 215-563-7000 • ALLY BANK • CUMBERLAND COUNTY Plaintiff • COURT OF COMMON PLEAS vs. • CIVIL DIVISION • KELBY D. BERRIER • NO. 13-1958-CIVIL TERM Defendant AFFIDAVIT OF SERVICE OF NOTICE OF SHERIFF'S SALE PURSUANT TO P.R.C.P., 404(2)/403 I hereby certify that a true and correct copy of the Notice of Sheriff Sale in the above captioned matter was sent by regular mail and certified mail,return receipt requested,to KELBY D. BERRIER on December 9, 2013 in accordance with the Order of Court dated November 27, 2013. The property was posted on December 13, 2013. The undersigned understands that this statement is made subject to the penalties of 18 Pa.C.S. §4904 relating to the unsworn falsification to authorities. Phelan Hallina LLP DATE: 2 /3114 By: John D. Krohn, q., Id. No.312244 Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA ,,,, ALLY BANK • -03 4 �.-n • CIVIL DIVISION n „rIr Plaintiff z� 73c, • NO. 13-1958-CIVI14RMI -v •v. • A' z F` rn • zEa O KELBY D.BERRIER • Defendant ORDER AND NOW,this oa'7 r. day of e/pev Gr ,2013,after consideration of Plaintiff's Motion for Service of Notice of Sale Pursuant to Special Order of Court,it is hereby: ORDERED that pursuant to Pa.R.C.P.430(a),service of the Notice of Sale is permitted on Defendant KELBY D.BERRIER by: ✓ REGULAR MAIL TO KELBY D.BERRIER at 25 CARLA DRIVE,SHIPPENSBURG,PA 17257-8220 Service by mail is complete upon the date of mailing as 03703 C roj!„4,,, Ake $A,4e G.p. ,A .,as-s CERTIFiED MAIL TO KELBY D.BERRIER at 25 CARLA DRIVE,SHIPPENSBURG,PA 17257-8220 Service by mail is complete upon the date of mailing ✓ POSTING 25 CARLA DRIVE,SHIPPENSBURG,PA 17257- 8220 PUBLICATION WHICH SHALL BE IN ACCORDANCE WITH PA.RC.P.3129.2(D). BY THE COURT: 4. ¢flab J. PH#766609 CC PHELAN HALLINAN,LLP 1617 JFK Boulevard, Suite 1400 • Philadelphia,PA 19103 KELBY D.BERRIER 25 CARLA DRIVE,SHIPPENSBURG,PA 17257-8220 0 . �� ��1i) � w y� �I n O C l FBI CD z N 00 v O� V, ? w N G ' N R � C Jr 0.CD • 4 N ` ° z o O V CD E cr I.] * * * * CD * * * * * * * * * * * * * * * * od tt un N N 0 x F.XI b x �^ xWM z � a C C�7 n g, 'C "r7 z a CA AD• B ro V bC toYdyQd• o. r fp r � °' � - c ° � � x � N ro � obv■ d ;h �. d R a ., L?J � a c� � � � z � � z y to(� y N � � WC z m - o 10n y o x r.* --ii t / tt7 N =c c. to a O ti R y N o ro N 2 O g o 4 C CD y . ✓ cm * ro Vcro f ,o .* U.S.POSTAGE>>PITNEY BOWES•.1. :.,tip+t 4∎• ZIP 19103 $ 002.400 67. -T L=� 0001381191 DEC 09 2013 I 11111 7178 2417 6099 0152 7013 LXH/766609 KELBY D. BERRIER 23323 CROGHAN PIKE SHADE GAP, PA 17255-8840 --fold here(regular) --fold here(6x9) --fold here(regular) UNITED STi TE // POST/IL SERVICS E Date Produced: 12/16/2013 PHELAN HALLINAN & SCHMIEG: The following is the delivery information for Certified MailTM item number 7178 2417 6099 0152 7013. Our records indicate that this item was delivered on 12/12/2013 at 12:35 p.m. in CHAMBERSBURG, PA 17201. The scanned image of the recipient information is provided below. Dawn s.ctlor+ Signature of Recipient • lui.1 • / t/6y 6 e- 01° Address of Recipient • -- .ry INS 7). J C3V- .\k ( P201 01 Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local post office or Postal Service representative. Sincerely, United States Postal Service The customer reference number shown below is not validated or endorsed by the United States Postal Service. It is solely for customer use. 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Copyright() 2014 USPS.All Rights Reserved. https://tools.usps.com/go/TrackConfirmAction.action?tLabels=71782417609901527020 1/22/2014 a AFFIDAVIT OF SERVICE PLAINTIFF CUMBERLAND COUNTY ALLY BANK PH#766609 DEFENDANT SERVICE TEAM/snl KELBY D.BERRIER COURT NO.:13-1958-CIVIL TERM SERVE KELBY D.BERRIER AT: TYPE OF ACTION 25 CARLA DRIVE XX Notice of Sheriff's Sale SHIPPENSBURG,PA 17257.8220 SALE DATE:02/05/2014 ****PLEASE POST THE PROPERTY*** **PLEASE POST PROPERTY IN ACCORDANCE WITH THE COURT ORDER** SERVED Served and made known to KELBY A.BERRIER,Defendant on the 13 day of Pecemtratrao 1?,at (C) , o'clock A M.,at 25 CARLA DRIVE.SHIPPENSBURG.PA 17257-8220,in the manner described below: Defendant personally served. _Adult family member with whom Defendant(s)reside(s). Relationship is Adult in charge of Defendant's residence who refused to give name or relationship. Manager/Clerk of place of lodging in which Defendant(s)reside(s), Agent or person in charge of Defendant's office or usual place of business. an officer of said Defendant's company. XX Other: POSTED THE PROPERTY Description: Age Height Weight Race Sex Other I, P 3 Ot t.►/ict.N'vm,a competent adult,hereby verify that I personally posted the property with a true and correct copy of the Notice of Sheriff's Sale in the manner as set forth herein,issued in the captioned case on the date and at the address indicated above. I understand that this statement is made subject to the penalties of 18 Pa. C.S. Sec.4904 relating to unworn falsification to authorities. DATE: Of j ('sa NAME: 11 II ! PRINTED NAME: i" TITLE:OtoCEsS SC irt_ NOT SERVED On the day of ,20 ,at o'clock_.M.,I, ,a competent adult hereby state thaT 15e�endYant NOT FOUND because: _Vacant _Does Not Exist Moved Does Not Reside(Not Vacant) _No Answer on at at Service Refused Other: I understand that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unswom falsification to authorities. BY: PRINTED NAME: ATTORNEY FOR PLAINTIFF Lawrence T.Phelan,Esq.,Id.No.32227 Francis S.Hallinan,Eq.,Id.No.62695 Daniel G.Schmieg,Esq,,Id.No.62205 Michele M.Bradford,Esq.,Id.No.69849 Judith T.Romano,Esq.,Id.No.58745 Jenne R.Davey,Eq.,Id.No.87077 Lauren R.Tabas,Esq.,Id.No.93337 Jay B.Jones,Esq.,Id.No.86657 Andrew L.Spivack,Esq.,Id.No.84439 Chrisovalante P.Fliakos,Esq.,Id.No.94620 Courtenay R.Dunn,Esq.,Id.No.206779 \\\ Mario J.Nanyon,Esq.,Id.No.203993 John M.Kolesnik,Esq.,Id.No.308877 Matthew O.Brushwood,Esq.,Id.No.310592 Zachary J.Jones,Esq.,Id.No.310721 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY r it Pr tI i k0 ,- 2L,!', JUL 10 AM 8; 213 CUMBERLAND COUNTY PENNSYLVANIA Ally Bank vs. Kelby D. Berrier Case Number 2013-1958 SHERIFF'S RETURN OF SERVICE 09/23/2013 11:45 AM - Deputy Jason Kinsler, being duly sworn according to law, states service was performed by posting a true copy of the requested Real Estate Writ, Notice and Description, and Sale Handbill in the above titled action, upon the property located at 25 Carla Drive, Southampton - Township, Shippensburg, PA 17255, Cumberland County. 11/26/2013 As directed by Joseph Schalk, Attorney for the Plaintiff, Sheriff's Sale Continued to 2/5/2014 02/05/2014 Ronny R. Anderson, Sheriff, being duly sworn according to law, states that after due and legal notice had been given according to law, he exposed the within described premises at public venue or outcry at the Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Cumberland County PA on February 05, 2014 at 10:00 a.m. He sold the same for the sum of $ 1.00 to Attorney Joseph Schalk on behalf of Ally Bank, being the buyer in this execution, paid to the Sheriff the sum of $ SHERIFF COST: $835.37 SO ANSWERS, April 10, 2014 RONNY R ANDERSON, SHERIFF c) C ountvSu:.., Sheriff, i E?IeoSoft, On August 23, 2013 the Sheriff levied upon the defendant's interest in the real property situated in Southampton Township, Cumberland County, PA, Known and numbered as, 25 Carla Drive, Shippensburg, as Exhibit "A" filed with this writ and by this Reference incorporated herein. Date: August 23, 2013 By: Real Estate Coordinator 90 :Q1 ti% 1 Z �flV (B1 LXII 41 CUMBERLAND LAW JOURNAL 10/11/13 Writ No. 2013-1958 Civil Term ALLY BANK vs. KELBY D. BERRIER Atty.: Joseph Schalk By virtue of a Writ of Execu- tion No. 13 -1958 -CIVIL TERM, ALLY BANK v. KELBY D. BERRIER owner(s) of property situate in the TOWNSHIP OF SOUTHAMPTON, CUMBERLAND County, Pennsylva- nia, being 25 CARLA DRIVE, SHIP- PENSBURG, PA 17257-8220. Parcel No. 39-36-2436-003. Improvements thereon: RESIDEN- TIAL DWELLING. Judgment Amount: $170,559.28. 22 PROOF OF PUBLICATION OF NOTICE IN CUMBERLAND LAW JOURNAL (Under Act No. 587, approved May 16, 1929), P. L.1784 COMMONWEALTH OF PENNSYLVANIA : ss. COUNTY OF CUMBERLAND : Lisa Marie Coyne, Esquire, Editor of the Cumberland Law Journal, of the County and State aforesaid, being duly sworn, according to law, deposes and says that the Cumberland Law Journal, a legal periodical published in the Borough of Carlisle in the County and State aforesaid, was established January 2, 1952, and designated by the local courts as the official legal periodical for the publication of all legal notices, and has, since January 2, 1952, been regularly issued weekly in the said County, and that the printed notice or publication attached hereto is exactly the same as was printed in the regular editions and issues of the said Cumberland Law Journal on the following dates, viz: October 11, October 18 and October 25, 2013 Affiant further deposes that he is authorized to verify this statement by the Cumberland Law Journal, a legal periodical of general circulation, and that he is not interested in the subject matter of the aforesaid notice or advertisement, and that all allegations in the foregoing statements as to time, place and character of publication are true. �iSia�Vlarie Coyne, Editor SWORN TO AND SUBSCRIBED before me this 25 day of October, 2013 NOTARIAL SEAL DEBORAH A COLLINS Notary Public CARLISLE BOROUGH, CUMBERLAND COUNTY My Commission Expires Apr 28, 2014 The Patriot -News Co. 2020.,Technology Pkwy Suite 300 Mechanicsburg, PA 17050 Inquiries - 717-255-8213 CUMBERLAND CO. SHERIFFS OFFICE CUMBERLAND COUNTY COURT HOUSE CARLISLE PA 17013 fte atriot Jews Now you know THE PATRIOT NEWS THE SUNDAY PATRIOT NEWS Proof of Publication Under Act No. 587, Approved May 16, 1929 Commonwealth of Pennsylvania, County of Dauphin} ss Marianne Miller, being duly sworn according to law, deposes and says: That she is the Assistant Controller of The Patriot News Co., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with its principal office and place of business at 2020 Technology Pkwy, Suite 300, in the Township of Hampden, County of Cumberland, State of Pennsylvania, owner and publisher of The Patriot -News and The Sunday Patriot -News newspapers of general circulation, printed and published at 1900 Patriot Drive, in the City, County and State aforesaid; that The Patriot -News and The Sunday Patriot -News were established March 4th, 1854, and September 18th, 1949, respectively, and all have been continuously published ever since; That the printed notice or publication which is securely attached hereto is exactly as printed and published in their regular daily and/or Sunday/ Community Weekly editions which appeared on the date(s) indicated below. That neither she nor said Company is interested in the subject matter of said printed notice or advertising, and that all of the allegations of this statement as to the time, place and character of publication are true; and That she has personal knowledge of the facts aforesaid and is duly authorized and empowered to verify this statement on behalf of The Patriot -News Co. aforesaid by virtue and pursuant to a resolution unanimously passed and adopted severally by the stockholders and board of directors of the said Company and subsequently duly recorded in the office for the Recording of Deeds in and for said County of Dauphin in Miscellaneous Book "M", Volume 14, Page 317. PUBLICATION COPY 2013-1958 CMI Term ALLY BANK vs. KELBY D. BERRIER Atty: Joseph Schalk 'By virtue of a Writ of Execution No. 13 -1958 -CIVIL TERM ALLY BANK v. . KELBY D. BERRIER owner(s) of property situate in the TOWNSHIP OF SOUTHAMPTON, } CUMBERLAND County, Pennsylvania, being 25 CARLA DRIVE, SHIPPENSBURG, PA 17257-8220 Parcel No. 39-36-2436-003 (Acreage or street address) Improvements thereon: RESIDENTIAL DWELLING Judgment Amount: $170,559.28 This ad ran on the date(s) shown below: 10/13/13 10/20/13 10/27/13 Sworn to s bscribed before me is 11 day of November, 2013 A.D. Walk & Arai • ublic i COMMONWEALTH OF PENNSYLVANIA Notarial Seal Holly Lynn Warfel, Notary Public Washington Twp., Dauphin County My Commission Expires Dec. 12, 2016 MEMBER, PENNSYLVANIA ASSOCIATION OF NOTARIES COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND } SS: I, Tammy Shearer, Recorder of Deeds in and for said County and State do hereby certify that the Sheriff's Deed in which Ally Bank is the grantee the same having been sold to said grantee on the 5th day of February A.D., 2014, under and by virtue of a writ Execution issued on the 22nd day of August, A.D., 2013, out of the Court of Common Pleas of said County as of Civil Term, 2013 Number 1958, at the suit of Ally Bank against Kelby D Derrier is duly recorded as Instrument Number 201414927. IN TESTIMONY WHEREOF, I have hereunto set my hand and seal of said office this 104 JU(y ,A.D. aoN day of Recorder of Deeds, Cumberland County, Carlisle, PA My Commission Expires the First Monday of Jan. 2018 Recorder of