Loading...
HomeMy WebLinkAbout13-2582 Supreme Cop.. of Pennsylvania • Cour . ComlPleas �;� For Protlsonotary Use Only: • f 1V i 1 'rr ' eet CU'EA1�`? County Docket No:`?, asga- O 4 The information collected on this form is used solely for court administration purposes. This form does not supp lement or rep lace the filing and service ofpleadings or other papers as required by law or rules o court. Commencement of Action: S ❑x Complaint ❑ Writ of Summons ❑ Petition E ❑ Transfer from Another Jurisdiction El Declaration of Taking Lead Plaintiff's Name: BANK OF AMERICA, N.A., AS Lead Defendant's Name: DEBORAH L. GRAHAM C SUCCESSOR BY MERGER TO BAC HOME LOANS T SERVICING, LP F/K/A COUNTRYWIDE HOME I LOANS SERVICING LP Dollar Amount Requested: ❑ within arbitration limits 0 Are money damages requested? ❑ Yes Z No x (Check one) ❑ outside arbitration limits j N Is this a Class Action Suit? ❑ Yes Z No Is this an MDJ Appeal? ❑ Yes Z No A Name of Plaintiff/Appellant's Attorney: John D. Krohn, Esq., Id. No.312244, 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. i TORT (do not include Mass 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 i ❑ Nuisance ❑ Dept. of Transportation ❑ Premises Liability ❑ Statutory Appeal: Other ❑ Product Liability (does not S include mass tort) ❑ Employment Dispute: E ❑ Slander/Libel/ Defamation Discrimination ❑ Other: ❑ Employment Dispute: Other ❑ Zoning Board C ❑ Other: T I MASS TORT ❑ Other: 0 ❑ 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 I ❑ Landlord/Tenant Dispute ❑ Non - Domestic Relations ® Mortgage Foreclosure: Residential Restraining Order 3 PROFESSIONAL LIABILITY ❑ Mortgage Foreclosure: Commercial ❑ Quo Warranto ❑ Dental ❑ Partition ❑ Replevin ❑ Legal ❑ Quiet Title ❑ Other: ❑ Medical ❑ Other: 1 ❑ Other Professional: Pa.R.C.P. 205.5 Updated 01/01 /2011 ME R0TH6N MR'r' 2013 -9 AH 9:56 C V PtlgNSYLVANIA TY PHELAN HALLINAN, LLP John D. Krohn, Esq., Id. No.312244 1617 JFK Boulevard, Suite 1400 ATTORNEY FOR PLAINTIFF One Penn Center Plaza Philadelphia, PA 19103 215 -563 -7000 BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP COURT OF COMMON PLEAS F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP CIVIL DIVISION 7105 CORPORATE DRIVE PLANO, TX 75024 TERM_ Plaintiff NO. - S V. CUMBERLAND COUNTY DEBORAH L. GRAHAM 902 ALLENVIEW DRIVE MECHANICSBURG, PA 17055 -8604 Defendant CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE � �1��,75 Orr a P File #: 320444 Co+ 36) sa t 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 #1: 320444 1. Plaintiff is BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP 7105 CORPORATE DRIVE PLANO, TX 75024 2. The name(s) and last known address(es) of the Defendant(s) are: DEBORAH L. GRAHAM 902 ALLENVIEW DRIVE MECHANICSBURG, PA 17055 -8604 who is /are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 04/24/2003 DEBORAH L. GRAHAM made, executed and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR SIB MORTGAGE CORP. A NEW JERSEY CORPORATION, which mortgage is recorded in the Office of the Recorder of Deeds of CUMBERLAND County, in Mortgage Book 1809, Page 2738. By Assignment of Mortgage recorded 04/30/2012 the mortgage was assigned to PLAINTIFF, which Assignment is recorded in Assignment of Mortgage Instrument No. 201212518.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. BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, directly or through an agent, has possession of the promissory note. The promissory note is either made payable to BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER File #: 320444 l TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP or has been duly endorsed. 5. The premises subject to said mortgage is described as attached. 6. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 12/01/2012 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of Mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. 7. The following amounts are due on the mortgage as of 04/16/2013: Principal Balance $80,096.07 Interest $2,503.02 11/01/2012 through 04/30/2013 Late Charges $129.67 Escrow Deficit $29.20 TOTAL $82,757.96 8. 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. 9. This action does not come under Act 91 of 1983 because the mortgage is FHA - insured. 10. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Mortgage Assistance Program pursuant to Act 91 of 1983, as amended in 2008, and /or Notice of Default as required by the mortgage document, as applicable, have File #: 320444 been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 11. This action does not come under Act 91 of 1983 because the mortgage is FHA- insured. WHEREFORE, Plaintiff demands an in rem judgment against the Defendant(s) in the sum of $82,757.96, together with interest, costs, fees, and charges collectible under the mortgage including but not limited to attorney fees and costs, and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN, LLP By: John D. ohn, Esq., Id. No.312244 Attorney for Plaintiff File #: 320444 LEGAL DESCRIPTION ALL THAT CERTAIN tract or parcel of land and premises, situate, lying and being in the Township of Upper Allen in the County of Cumberland and Commonwealth of Pennsylvania being known as Lot 4G part of Townhouse Plot No. 4 as shown on the final Subdivision Plan of Allenview; Stage II, Section B, Sheet 2, dated April 12, 1979 and recorded in Plan Book 36, Page 47, as follows, to wit: BEGINNING at the southeast corner of Lot 4 -F and going along a line North 36 degrees 08 minutes West a distance of 90.46 feet to a point; thence turning right along a line north 53 degrees 52 minutes East a distance of 20.3 feet to a point; thence turning right along a line South 36 degrees 08 minutes East a distance of 89.93 feet to a point on the northern right of way line of Allenview Drive; thence turning right along said right of way line South 52 degrees 22 minutes 39 seconds West a distance of 20.31 feet to the point of beginning. Parcel #: 42 -28- 2423 -242 PROPERTY ADDRESS: 902 ALLENVIEW DRIVE, MECHANICSBURG, PA 17055 -8604 PARCEL # 42 -28- 2423 -242. File #: 320444 VERIFICATION kc�- r I .4c Jd S > 1 > a-c .-, 4 NJ 1 c� (In % -� 4 CA- , hereby states that he /,ft is A-0.^ + of BANK OF AMERICA, N.A., Plaintiff in this matter, that he /C� 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& information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unworn falsification to authorities. Name:�o -r-1 s u-c � a DATE: � - �- -- \ 3 Title: -4- t c,, Pr -- .L- .o -..a. BANK OF AMERICA, N.A. File #: 320444 Name: GRAHAM File #: 320444 FORM 1 IN THE COURT OF COMMON PLEAS BANK OF AMERICA, N.A., AS SUCCESSOR BY OF CUMBERLAND COUNTY, PENNSYLVANIA MERGER TO BAC HOME LOANS SERVICING, n o � LP F/K/A COUNTRYWIDE HOME LOANS Z3 SERVICING, LP M C" M Fri Plaintiff(s) = N X" F_ Cll 1 Qi vs. -'r O O . DEBORAH L. GRAHAM C a -� E_ Defendants) / J Civil 5(-- .n cY c-r' ?y NOTICE OF RESIDENTIAL MORTGAGE FORECLOIJI 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 a lawyer, 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 no charge to you. Once you have been appointed a legal representative, you must promptly meet with that legal representative within twenty (20) days of the appointment date. During that meeting, you must provide the legal representative with all 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 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 out 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 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 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 out reasonable arguments 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: S Date Jo . Krohn, Esq., Id. No.312244 Attorney for Plaintiff t FORM 2 Cumberland County Residential Mortgage Foreclosure Diversion Program Financial Worksheet Date Cumberland County Court of Common Pleas 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 counseling agency. Please provide the following information to the best of your knowledge: CUSTOM 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? CO-BORRONVER 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: r � 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 motorcycles): Model: Year: Amount owed: Value Monthly Income Name of Employers: 1 • Monthly Gross Monthly Net 2• Monthly Gross Monthly Net 3 • Monthly Gross Monthly Net 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 EXPENSE AMOUNT Mortgage Food 2" Mortgage Utilities Car Payment(s) Condo/Neigh. Fees Auto Insurance Med. not covered Auto fuel/repairs Other prop. payment Install. Loan Payment Cable TV Child Su ort/Alim. Spending Mone Da /Child Care /Tuft. Other Ex enses 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: i ' 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 known, regarding your lender and lender's loan servicing company: Lender's Contact (Name): Phone: Servicing Company (Name): Contact: Phone: AUTHORIZATION I/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 counseling services provided by the above named Borrower Signature Date Co- Borrower Signature Date Please forward this document along with the following information to lender and lender's counsel: 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., ,O_UNTY Ronny R Andersonk�s Sheriff9 Jody S Smith r, 2t3t _ Chief Deputy V. r �r4a„ Richard W Stewart ,�� � � Solicitor OFFICE f E wt"WPIF Bank of America, N.A. Case Number v . Debosrah L. Graham 2013-2582 SHERIFF'S RETURN OF SERVICE 05/10/2013 05:28 PM-Deputy Ryan Burgett, being duly sworn according to law, served the requested Notice of Residential Mortgage Foreclosure Diversion Program and Complaint in Mortgage Foreclosure by "personally"handing a true copy to a person representing themselves to be the Defendant,to wit: Deborah L. Graham at 902 Allenview Drive, Upper Allen Township, Mechanicsburg, PA 17055. RYAN BURGETT, D SHERIFF COST: $39.30 SO ANSWERS, May 13, 2013 RbNIsrY R ANDERSON, SHERIFF (c}CountySulie Sheriff,Toleosoft,Inc. BANK OF AMERICA, N.A., AS : IN THE COURT OF COMMON PLEAS OF SUCCESSOR BY MERGER TO : CUMBERLAND COUNTY, PENNSYLVANIA BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff : CIVIL DIVISION V. : NO. 13-2582 CIVIL DEBORAH L. GRAHAM, Defendant ` s 1 :3 PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT AND NOW, comes Defendant, Deborah L. Graham, by her attorneys, who file the within Preliminary Objections to Plaintiff's Complaint, as follows: L PRELIMINARY OBJECTION RAISING FAILURE TO CONFORM TO APPLICABLE RULES OR LA W. 1. Plaintiff's complaint, paragraph 9, alleges that the mortgage at issue is an.FHA-.insured mortgage, which document refers to HUD regulations that limit Plaintiff's ability to accelerate or foreclose. A true and correct copy of the aforesaid mortgage is attached hereto as Exhibit"1". 2. Specifically, subparagraph 9.(d) "Regulations of HUD Secretary", of the mortgage document states the following: 9. Grounds for Acceleration of Debt. (a) Default. Lender may, except as limited by regulations issued by the Secretary, in cases of payment defaults, require immediate payment in full .... (d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender's rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary. [emphasis added] 3. The servicing of FHA Insured Mortgages is subject to the provisions of the Department of Housing and Urban Development("HUD") Servicing Regulations as set forth at 24 CFR 203.500 to 24 CFR 203.508 and 24 CFR 203.600 to 24 CFR 203.616. 4. In addition HUD Handbooks 4330.1 and 4330.2 further delineate these servicing requirements by FHA Insured Mortgages. 5. FHA loans have special servicing requirements, including a counseling notice mailed to the mortgagor within 45 days of default, a face-to-face meeting with the borrower within 90 days of default,and a notice of available counseling. 24. C.F.R. §203.500 et seq. 6. Lenders who participate in the HUD insured program are directed by regulations to follow specific HUD servicing guidelines in dealing with mortgagors. These mandatory servicing guidelines appear at 24 C.F.R. §203.500-203.662. 7. Based on these regulations, HUD has issued a handbook entitled, Administration of the Insured Home Mortgages. HUD expects mortgagees to be aware of and sensitive to the "...psychological differences and varying lifestyles among borrowers". Furthermore, "(w)hen an application is submitted, HUD assumes that the lender has already made a firm decision to make a loan,to assume any added servicing responsibilities. (Emphasis supplied). 8. Accordingly,the HUD handbook provides that homeowners behind in their mortgage payments must be provided with a list of HUD-approved housing agencies in their state by the bank, mortgagee or mortgage servicing organization. 9. The HUD handbook explains that such notice is mandatory: Homeowners behind in their mortgage payments,one or more months,must be provided with a list of HUD-approved housing counseling agencies in their state by the bank, mortgagee or mortgage servicing organization. This action is required by Section 169 of the Housing and Community Development Act of 1987. There are no penalties in the Act. However,the homeowner may request the Court to stop the foreclosure proceedings until such list is provided and sufficient time is allowed for counseling. If foreclosure has occurred,and the list of HUD-approved housing counseling agencies was not provided,the homeowner can request the Court for reimbursement for all losses sustained on account of the foreclosure by the bank, mortgagee or mortgage servicing organization. See Appendix 18 of Handbook attached hereto as Exhibit"2" 10. The intent of the Act is to provide mortgagors with the opportunity to contact HUD- approved housing counseling agencies, obtain counseling advice and assistance and become current on their monthly mortgage payments. 11. For that reason, Plaintiff herein was required to pursue and exhaust alternatives to foreclosure as provided in the HUD Handbook prior to instituting a foreclosure action against Borrower. 12. Compliance with default loan servicing obligations owed to a borrower pursuant to the terms of the mortgage loan can be held to be a contractual condition precedent to instituting action and the failure of the plaintiff to implement foreclosure avoidance servicing is an appropriate subject for a counterclaim for declaratory and injunctive relief. 13. Moreover, FHA lenders have an equitable obligation to follow the guidelines established in the HUD Handbook in the event of a mortgagor's default. Fleet Real Estate Funding Corp. v. Smith, 366 Pa.Super. 116, 530 A.2d 919 (1987); Com. School Employee's Retirement Fund v. Terrell, 582 A.2d 367 (Pa.Super. 1990); First Federal Say. &Loan Assn. of Pittston v. Reggie, 376 Pa. Super. 346, 546 A.2d 62 (1988). 13. Plaintiff is required by HUD Regulations to send the Defendant various forms and notices, including a HUD form 92068F "Request for Financial Information" letter and a pamphlet titled"Avoiding Foreclosure". 14. In addition, HUD Regulations and the HUD Servicing Handbooks require Plaintiff to first attempt to ascertain the reasons of default and, if they fit within a certain category,to attempt to avoid foreclosure by offering the defaulting mortgagor a forbearance plan or a recasting of the mortgage in appropriate circumstances. 15. Moreover, HUD Regulations require that the Plaintiff, prior to foreclosure, evaluate the defaulting Mortgagor for assignment of his or her mortgage to HUD for special relief. 24. C.F.R. §203.500 et seq. 1.6. Plaintiff's complaint does not allege that it complied with any of the HUD regulations that serve as conditions precedent to filing the within foreclosure action; further, Plaintiff fails to allege that it ascertained the reasons for Borrower's default and attempted to work with her in a manner described by HUD Regulations and HUD Servicing requirements and mortgage document. 17. A foreclosing HUD Insured Mortgagee who does not send the required notice and/or evaluate the defaulting Mortgagor for a forbearance plan or assignment to HUD for special relief may not proceed with foreclosure, the foregoing requirements being mandatory. 18. The mortgage document itself indicates that the regulations dealing with alternatives to foreclosure take priority [i.e. "This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary"] 1.9. Further, the above cited PA court decisions have required a foreclosing FHA Insured Mortgagee to service the subject mortgage in accordance with the appropriate HUD servicing regulations or guidelines before acceleration or foreclosure. 20. This Court has the power to strike Plaintiff s Complaint and dismiss Plaintiff's lawsuit for its failure to pursue and exhaust the alternatives to foreclosure enumerated in the HUD Handbook prior to instituting a foreclosure action. WHEREFORE, Defendant respectfully requests that the mortgage foreclosure complaint against her be stricken and that the action be dismissed. In the alternative, Defendant requests that Plaintiff be required to provide a specific averment of compliance with the conditions precedent mandated by HUD prior to filing the foreclosure action against Defendant. Date: S��3/�� Respectfully submitted, Stephen K. Portko, Esquire#34538 101 South U.S. Route 15 Dillsburg, PA 17019 (717)432-9706 Attorney for Deborah L. Graham EXHIBIT 661" ref c -!Ev r DEF-n ,'.;;LRLAtiD CO ' Parcel Number: AP# SIB1000237498 LN# 1000237498 [Spas Above"b Lne For Recording Data[ FHA Case No. Commonwealth of Pennsylvania MORTGAGE 441-7154858-703 MIN 1000273-1000237498-1 THIS MORTGAGE("Security Instrument")is given on April 24, 2003 The Mortgagor is DEBORAH L GRAHAM. UNMARRIED ("Borrower"). This Security Instrument is given to Mortgage Electronic Registration Systems, Inc. ("MERS"),(solely as nominee for Leader,as hereinafter defined,and Lender's successors and assigns),as mortgagee.MERS is organized and existing under the laws of Delaware,and has an address and telephone number of P.O.Box 2026,Flint,MI 48501-2026,tel.(888)679-MERS. SIB MORTGAGE CORP., A NEW JERSEY CORPORATION ("Lender")is organized and existing under the laws of THE STATE OF NEW JERSEY ,and has an address of 1250 ROUTE 28, BRANCHBURG, NJ 08876 .Borrower owes Lender the principal sum of Ninety Three Thousand Nine Hundred Forty One and no/100 Dollars(U.S.$93.941.00 >. FHA Pennsylvania Mortgage with NEM•4/96 ®®4NIPA)t0208) ,� py Pepe t o110 1AW OBN2 InitWe: vMP MOFrTGAGE FORAS-(8001621- 91 BK 1809PG2738 This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provides for monthly payments, with the full debt, if not paid earlier, due and payable on May 1, 2033 .This Security Instrument secures to Lender:(a)the repayment of the debt evidenced by the Note,with interest,and all renewals,extensions and modifications of the Note; (b) the payment of all other surns, with interest, advanced under paragraph 7 to protect the security of this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to MERS(solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MFRS, the following described property located in CUMBERLAND County,Pennsylvania: SEE ATTACHED LEGAL DESCRIPTION which has the address of-96—NOR:Rt ALLENVIEW DRIVE MECHAN ICSBURG (city],Pennsylvania 17055 (Zip Code) ("Property Address"); TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the"Property."Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument;but, if necessary to comply with law or custom, MERS, (as nominee for Lender and Lender's successors and assigns), has the right: to exercise any or all of those interests,including,but not limited to,the right to foreclose and sell the Property;and to take any action required of Lender including, but not limited to, releasing or canceling this Security Instrument. BORROWER COVENANTS that Borrower is lawfully seized of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands,subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. (CLAN(PAJ 1020e) vapo z or ro gK 1809PG2739 Borrower and Lender covenant and agree as follows: UNIFORM COVENANTS. 1.Payment of Principal,Interest and Late Charge.Borrower shall pay when due the principal o£, and interest on,the debt evidenced by the Note and late charges due under the Note. 2. Monthly Payment of Taxes, Insurance and Other Charges. Borrower shall include in each monthly payment,together with the principal and interest as set forth in the Note and any late charges,a sum for (a) taxes and special assessments levied or to be levied against the Property, (b) leasehold payments or ground rents on the Property,and(c)premiums for insurance required under paragraph 4. In any year in which the Lender must pay a mortgage insurance premium to the Secretary of housing and Urban Development ("Secretary"), or in any year in which such premium would have been required if Lender still held the Security Instrument,each monthly payment shall also include either:(i)a sum for the annual mortgage insurance premium to be paid by Lender to the Secretary,or(ii)a monthly charge instead of a mortgage insurance premium if this Security Instrument is held by the Secretary, in a reasonable amount to be determined by the Secretary. Except for the monthly charge by the Secretary,these items are called"Escrow Items"and the sums paid to Lender are called"Escrow Funds." Lender may, at any time,collect and hold amounts for Escrow Items in an aggregate amount not to exceed the maximum amount that may be required for Borrower's escrow account under the Real Estate Settlement Procedures Act of 1474, 12 U.S.C.Section 2601 er seq.and implementing regulations,24 CFR Part 3500, as they may be amended from time to time("RESPA"), except that the cushion or reserve permitted by RESPA for unanticipated disbursements or disbursements before the Borrower's payments are available in the account may not be based on amounts due for the mortgage insurance premium. If the amounts held by Lender for Escrow Items exceed the amounts permitted to be held by RESPA, Lender shall account to Borrower for the excess funds as required by RESPA. If the amounts of funds held by Lender at any time are not sufficient to pay the Escrow Items when due, bender may notify the Borrower and require Borrower to snake up the shortage as permitted by RESPA. The Escrow Funds are pledged as additional security for all sums secured by this Security Instrument. If Borrower tenders to Lender the full payment of all such sums,Borrower's account shall be credited with the balance remaining for all installment items (a), (b), and (c) and any mortgage insurance premium installment that Lender has not become obligated to pay to the Secretary,and Lender shall promptly refund any excess funds to Borrower. immediately prior to a foreclosure sale of the Property or its acquisition by Lender,Borrower's account shall be credited with any balance remaining for all installments for items(a), (b),and(c). 3. Application of Payments. All payments under paragraphs I and 2 shall be applied by Lender as follows: First, to the mortgage insurance premium to be paid by Lender to the Secretary or to the monthly charge by the Secretary instead of the monthly mortgage insurance premium; Second, to any taxes, special assessments, leasehold payments or ground rents, and fire, flood and other hazard insurance premiums,as required; Third,to interest due under the Note; Fourth,to amortization of the principal of the Note;and Fifth,to late charges due under the Note. 4. Fire, Flood and Other Hazard Insurance. Borrower shall insure all improvements on the Property, whether now in existence or subsequently erected, against any hazards, casualties, and contingencies, including fire, for which Lender requires insurance. This insurance shall be maintained in 4NiPA1 twoer Pses s or to G 0K1809PG2740 the amounts and for the periods that Lender requires.Borrower shall also insure all improvements on the Property,whether now in existence or subsequently erected, against loss by floods to the extent required by the Secretary. All insurance shall be carried with companies approved by Lender. The insurance policies and any renewals shall be held by Lender and shall include loss payable clauses in favor of,and in a form acceptable to,Lender. In the event of loss,Borrower shall give Lender immediate notice by mail. Lender may make proof of loss if not made promptly by Borrower. Each insurance company concerned is hereby authorized and directed to make payment for such loss directly to Lender,instead of to Borrower and to Lender jointly. All or any part of the insurance proceeds may be applied by Lender, at its option, either (a) to the reduction of the indebtedness under the Note and this Security Instrument,first to any delinquent amounts applied in the order in paragraph 3,and then to prepayment of principal,or(b)to the restoration or repair of the damaged Property.Any application of the proceeds to the principal shall not extend or postpone the due date of the monthly payments which are referred to in paragraph 2, or change the amount of such payments. Any excess insurance proceeds over an amount required to pay all outstanding indebtedness under the Note and this Security Instrument shall be paid to the entity legally entitled thereto. In the event of foreclosure of this Security Instrument or other transfer of title to the Property that extinguishes the indebtedness,all right,title and interest of Borrower in and to insurance policies in force shall pass to the purchaser. S. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application;Leaseholds. Borrower shall occupy,establish,and use the Property as Borrower's principal residence within sixty days after the execution of this Security Instrument(or within sixty days of a later sale or transfer of the Property) and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy,unless Lender determines that requirement will cause undue hardship for Borrower, or unless extenuating circumstances exist which are beyond Borrower's control. Borrower shall notify Leader of any extenuating circumstances. Borrower shall not commit waste or destroy,damage or substantially change the Property or allow the Property to deteriorate, reasonable wear and tear excepted.Lender may inspect the Property if the Property is vacant or abandoned or the loan is in default. Lender may take reasonable action to protect and preserve such vacant or abandoned Property. Borrower shall also be in default if Borrower,during the loan application process, gave materially false or inaccurate information or statements to Lender(or failed to provide Lender with any material information)in connection with the loan evidenced by the Note,including,but not limited to, representations concerning Borrower's occupancy of the Property as a principal residence.If this Security Instrument is on a leasehold,Borrower shall comply with the provisions of the lease.If Borrower acquires fee title to the Property,the leasehold and fee title shall not be merged unless Lender agrees to the merger in writing. 6. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of any part of the Property,or for oonveyance in place of condemnation, are hereby assigned and shall be paid to Lender to the extent of the full amount of the indebtedness that remains unpaid under the Note and this Security Instrument. Lender shall apply such proceeds to the reduction of the indebtedness under the Note and this Security Instrument, first to any delinquent amounts applied in the order provided in paragraph 3,and then to prepayment of principal.Any application of the proceeds to the principal shall not extend or postpone the due date of the monthly payments,,which are referred to in paragraph 2, or change the amount of such payments. Any excess proceeds over an amount required to pay all outstanding indebtedness under the Note and this Secu Instrument shall be paid to the entity legally entitled thereto. was,r. -4NiPAI roaoo1 v.oe.a,o BK 1809PG274 I 7.Charges to Borrower and Protection of Lender's Rights in the Property.Borrower shall pay all governmental or municipal charges,fines and impositions that are not included in paragraph 2. Borrower shall pay these obligations on time directly to the entity which is owed the payment.If failure to pay would adversely affect Lender's interest in the Property,upon Lender's request Borrower shall promptly furnish to Lender receipts evidencing these payments. If Borrower fails to make these payments or the payments required by paragraph 2, or fails to perform any other covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy,for condemnation or to enforce laws or regulations),then Lender may do and pay whatever is necessary to protect the value of the Property and Lender's rights in the Property, including payment of taxes,hazard insurance and other iterns mentioned in paragraph 2. Any amounts disbursed by Lender under this paragraph shall become an additional debt of Borrower and be secured by this Security Instrument. 'These amounts shall bear interest from the date of disbursement,at the Note rate,and at the option of Lender,shall be immediately due and payable. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower:(a)agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender; (b) contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or(c)secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument.If Lender determines that any part of the Property is subject to a lien which may attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set forth above within 10 days of the giving of notice. S.Fees.Lender may collect fees and charges authorized by the Secretary. 9.Grounds for Acceleration of Debt. (a)Default.Lender may,except as limited by regulations issued by the Secretary, in the case of payment defaults, require inunediate payment in full of all sums secured by this Security Instrument if- (i)Borrower defaults by failing to pay in full any monthly payment required by this Security Instnmrent prior to or on the due date of the next monthly payment,or (ii)Borrower defaults by failing,for a period of thirty days,to perform any other obligations contained in this Security Instrument. (b) Sale Without Credit Approval. Lender shall, if permitted by applicable law (including Section 341(d) of the Garr-St. Germain Depository Institutions Act of 1982, 12 U.S.C. 1701j-3(d))and with the prior approval of the Secretary,require immediate payment in full of all sums secured by this Security Instrument if: (i) All or part of the Property, or a beneficial interest in a trust owning all or part of the Property,is sold or otherwise transferred(other than by devise or descent),and (ii)The Property is not occupied by the purchaser or grantee as his or her principal residence, or the purchaser or grantee does so occupy the Property but his or her credit has not been approved in accordance with the requirements of the Secretary. (c)No Waiver.If circumstances occur that would permit Lender to require immediate payment in full,but Lender does not require such payments,Lender does not waive its rights with respect to subsequent events. INtlela: ®3N(PA►mast Pg.S of 10 BK i 809PG2742 (d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender's rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid.This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary. (e)Mortgage Not Insured. Borrower agrees that if this Security Instrument and the Note are not determined to be eligible for insurance under the National Housing Act within 60 days from the date hereof,Lender may, at its option,require immediate payment in full of all sums secured by this Security Instrument. A written statement of any authorized agent of the Secretary dated subsequent to 60 days from the date hereof, declining to insure this Security Instrument and the Note, shall be deemed conclusive proof of such ineligibility. Notwithstanding the foregoing,this option may not be exercised by Lender when the unavailability of insurance is solely due to Lender's failure to remit a mortgage insurance premium to the Secretary. 10. Reinstatement.Borrower has a right to be reinstated if Lender has required immediate payment in full because of Borrower's failure to pay an amount due under the Note or this Security Instrument.This right applies even after foreclosure proceedings are instituted. To reinstate the Security Instrument, Borrower shall tender in a lump sum all amounts required to bring Borrower's account current including, to the extant they are obligations of Borrower under this Security Instrument, foreclosure costs and reasonable and customary attorneys'fees and expenses properly associated with the foreclosure proceeding. Upon reinstatement by Borrower,this Security Instrument and the obligations that it secures shall remain in effect as if Lender had not required immediate payment in full. However, Lender is not required to permit reinstatement if: (i) Lender has accepted reinstatement after the commencement of foreclosure proceedings within two years immediately preceding the commencement of a current foreclosure proceeding, (ii) reinstatement will preclude foreclosure on different grounds in the future, or (iii) reinstatement will adversely affect the priority of the lien created by this Security Instntment. 11. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time of payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall not operate to release the liability of the original Borrower or Borrower's successor in interest. Lender shall not be required to commence proceedings against any successor in interest or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made by the original Borrower or Borrower's successors in interest.Any forbearance by Lender in exercising any right or remedy shall not be a waiver of or preclude the exercise of any right or remedy. 12. Successors and Assigns Bound; Joint and Several Liability; Co-Signers. The covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower,subject to the provisions of paragraph 9(b).Borrower's covenants and agreements shall be joint and several. Any Borrower who co-signs this Security Instrument but does not execute the Note: (a) is co-signing this Security Instrument only to mortgage, grant and convey that Borrower's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower may agree to extend,modify,forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without that Borrower's consent. Iripels: dD ANWAl(02061 rpe a of 10 BK 1809PG2743 13. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method.The notice shall be directed to the Property Address or any other address Borrower designates by notice to Lender. Any notice to Lender shall be given by first class mail to Lender's address stated herein or any address Lender designates by notice to Borrower.Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph. 14. Goveming Law; Severability.This Security Instrument shall be governed by Federal law and the law of the jurisdiction in which the Property is located.In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law,such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision.To this end the provisions of this Security Instrument and the Note are declared to be severable. 15.Borrower's Copy.Borrower shall be given one conformed copy of the Note and of this Security Instrument. 16. Hazardous Substances. Borrower shall not cause or permit the presence,use,disposal,storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. Borrower shall promptly give Lender written notice of any investigation,claim, demand,lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous Substances affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. As used in this paragraph 16, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in this paragraph 16, "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health,safety or environmental protection. NON-UNIFORM COVENANTS.Borrower and Lender further covenant and agree as follows: 17.Assignment of Rents.Borrower unconditionally assigns and transfers to Lender all the rents and revenues of the Property.Borrower authorizes Lender or Lender's agents to collect the rents and revenues and hereby directs each tenant of the Property to pay the rents to Lender or Lender's agents. However, prior to Lender's notice to Borrower of Borrower's breach of any covenant or agreement in the Security Instrument, Borrower shall collect and receive all rents and revenues of the Property as trustee for the benefit of Lender and Borrower. This assignment of rents constitutes an absolute assignment and not an assignment for additional security only. If Lender gives notice of breach to Borrower: (a)all rents received by Borrower shall be held by Borrower as trustee for benefit of Lender only, to be applied to the sums secured by the Security Instrument;(b)Lender shall be entitled to collect and receive all of the rents of the Property; and(c)each INtlala: AN(PA)(02041 Pao"7 or 10 BKI809PG2744 tenant of the Property shall pay all rents due and unpaid to Lender or Lender's agent on Lender's written demand to the tenant. Borrower has not executed any prior assignment of the rents and has not and will not perform any act that would prevent Lender from exercising its rights under this paragraph 17. Lender shall not be required to enter upon, take control of or maintain the Property before or after giving notice of breach to Borrower.However,Lender or a judicially appointed receiver may do so at any time there is a breach.Any application of rents shall not cure or waive any default or invalidate any other right or remedy of Lender.This assignment of rents of the Property shall terminate when the debt secured by the Security Instrument is paid in full. 18.Foreclosure Procedure. If Lender requires immediate payment in full under paragraph 9, Lender may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 18,including,but not limited to,attorneys'fees and costs of title evidence. If the Lender's interest in this Security Instrument is held by the Secretary and the Secretary requires immediate payment in full under Paragraph 9, the Secretary may invoke the nonjudidal power of sale provided to the Single Family Mortgage Foreclosure Act of 1994 ("Act") (12 U.S.C. 3751 er seq.) by requesting a foreclosure commissioner designated under the Act to commence foreclosure and to sell the Property as provided in the Act.Nothing in the preceding sentence shall deprive the Secretary,of any rights otherwise available to a Lender under this Paragraph 18 or applicable law. 19. Release.Upon payment of all sums secured by this Security Instrument,this Security Instrument and the estate conveyed shall terminate and became void. After such occurrence, Lender shall discharge and satisfy this Security Instrument without charge to Borrower. Borrower shall pay any recordation costs. 20. Waivers.Borrower,to the extent permitted by applicable law,waives and releases any error or defects in proceedings to enforce this Security instrument,and hereby waives the benefit of any present or future laws providing for stay of execution,extension of time,exemption from attachment,levy and sale, and homestead exemption. 21. Reinstatement Period. Borrower's time to reinstate provided in paragraph 10 shall extend to one hour prior to the commencement of bidding at a sheriff's sale or other sale pursuant to this Security Instrument. 22. Purchase Money Mortgage. If any of the debt secured by this Security Instrument is tent to Borrower to acquire title to the Property,this Security Instrument shall be a purchase money mortgage. 23. Interest Rate After Judgment. Borrower agrees that the interest rate payable after a judgment is entered on the Note or in an action of mortgage foreclosure shall be the rate payable from time to time under the Note. 24. Riders to this Security Instrument. If one or more riders are executed by Borrower and recorded together with this Security Instrument,the covenants of each such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Security Instrument as if the rider(s) were a par of this Security Instrument.[Check applicable box(es)]. Condominium Rider M Growing Equity Rider ❑ Other[specify) Planned Unit Development Rider ❑ Graduated Payment Rider mu+c, 4 0(�mN1PA}(0200 Pop e a�a BK 1809PG2745 BY SIGNING BELOW, Borrower accepts and agrees to the terms contained in this Security Instrument and in any rider(s)executed by Borrower and recorded with it. Witnesses: (Sea]) DEBORAH L GRAHAM -Borrower (Seal) -Borrower (Seat) (Seal) -Borrower -Borrower (seat) (mil) -Borrower -Borrower (Seat) (Seal) -Borrower -Borrower 4N(PA)rozoer pap a or io 8K 1809PG2746 Certificate of Residence 1' << "� ��f e � do hereby certify that the correct address of the within-named Mortgagee is P.O.Box 2026,Flint,MI 48501-2026. Witness my hand this 24th day of April 2003 Agent of Mortgagec COMMONWEALTH OF PENNSYLVANIA, came ar-La N D County ss: On this, 24th day of Apri 1 2003 ,before me,the undersigned officer, personally appeared DEBORAH L GRAHAM known to me(or satisfactorily proven)to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/she/they executed the same for the purposes herein contained. IN WITNESS WHEREOF,I hereunto set my hand and official seal. My Commission Expires: NOTARIAL SEAL KAREN L.NAILOR,NOTARY PUBLIC SILVER SPRING TWP.,COUNTY OFCUMBERLAND MY COMMISSION EXPIRES MAY 20,2006 c: Tide of Officer 3 I ritlNC V 4NlPAI tozos> P.O*io of io T Certify i' is to he recorded COUlItY PA ;.i Recorder Of Deeds BH 1809PG2747 EXHIBIT A ALL THAT CERTAIN tract or parcel of land and premises,situate,lying and being in the Township of Upper Allen in the County of Cumberland and Commonwealth of Pennsylvania being known as Lot 4G part of Townhouse Plot No.4 as shown on the final Subdivision Plan of Allenview, Stage 11, Section 8,Sheet 2,dated April 12, 1979 and recorded in Plan Book 36,Page 47,as follows,to wit: BEGINNING at the southeast comer of Lot 4-F and going along a line North 36 degrees 08 minutes West a distance of 90.46 feet to a point; thence turning right along a line north 53 degrees 52 minutes'East a distance of 20.3 feet to a point; thence turning right along a line South 36 degrees 08 minutes East a distance of 89.93 feet to a point on the northern right of way line of Allenview Drive; thence turning right along said right of way line South 52 degrees 22 minutes 39 seconds West a distance of 20.31 feet to the point of beginning. Parcel#:42-28-2423-242 EXCEPTING THEREOUT AND THEREFROM(IF ANY)THE PREMISES AS MORE FULLY DESCRIBED IN THE FOLLOWING DEED;' NONE PIT123-14288 File# PIT123-14288 PK I 809t�&7"Ilment# K320538 This commitment is invalid unless the Insurilg A rovisions and les A and B are attached. EXHIBIT "2" 4330.1 REV-5 APPENDIX 18 DELINQUENT AND DEFAULT COUNSELING Homeowners behind in their mortgage payments, one or more months, must be provided with a list of HUD-approved housing counseling agencies in their state by the bank, mortgagee or mortgage servicing organization. This action is required by Section 169 of the Housing and Community Development Act of 1987. There are no penalties in the Act. However, the homeowner may request the Court to stop the foreclosure proceedings until such list is provided and sufficient time is allowed for counseling. If foreclosure has occurred, and the list of HUD-approved housing counseling agencies was not provided, the homeowner can request the Court for reimbursement for all losses sustained on account of the foreclosure by the bank, mortgagee or mortgage servicing organization. The intent of the Act is to provide homeowners with the opportunity of contacting HUD-approved housing counseling agencies, obtain counseling advice and assistance and become current in their monthly mortgage payments. HUD-approved housing counseling agencies provide a screening interview for the delinquent or defaulting homeowner to determine and identify the problems and solutions. This is immediately followed by an intake of the family background, information on the family's earnings, income from all sources, assets, debts (including credit card balances past due) , and monthly installment payments. The homeowner will provide information on the delinquency or default, and on family housing and living costs. The agency or homeowner will contact each creditor and arrange a repayment plan, thereby reducing the monthly payments and providing more funds for the monthly mortgage payment and towards reducing the delinquency or default. Additionally, food banks will be tapped to reduce the family's food costs. The utility companies will be contacted by the agency for credits or grants towards reducing unpaid utility bills. All factors that affect the monthly mortgage payment will be treated by the HUD-approved housing counseling agency. The agency will immediately make referrals to local organizations for health and child care, martial guidance, and job training and placement. Page 1 of 29/94 4330.1 REV-5 APPENDIX 18 The agency will confer with the bank, mortgagee or mortgage servicing organization on a repayment plan to bring the mortgage current. If this cannot be arranged, the agency will contact the HUD Field Office and confer on the proposed repayment plan and on the assignment program. In the meantime, the agency is providing budgeting and money management for the homeowner and family. Most agencies provide delinquent and default counseling. Some agencies specialize in tenant counseling, shared housing counseling, or in Home Equity Conversion Mortgage (HELM) counseling. Regardless, agencies are advocates for all the parties: HUD, the bank or mortgagee or mortgage servicing organization and the homeowner. Although the agency represents the homeowner, it is responsible to the HUD Field Office that originally approved the agency and recertifies it annually. The agency needs to know HUD programs (including mortgage servicing processing requirements of banks, mortgagees and mortgage servicing organizations and understand each of their goals and constraints. In the past, agencies used HUD forms to verify deposits, employment and other matters. Currently, such forms are generally not used. Today, agencies request the homeowners to provide all the information needed. Employment is verified by payroll stubs and other documents, and the homeowner request the employer to contact the agency. Many agencies have contracts with the credit reporting firms for obtaining the necessary credit reports. Some agencies will accept additional clients if faced with a tremendous workload. Other agencies will not accept clients if they are located outside or beyond the agency's counseling areas. Some will limit their counseling to areas within specified zip codes, within city neighborhoods or to city-wide areas. Other agencies cover several counties, and some will establish satellite offices throughout the state and in the adjoining states. Under Section 577 of the Cranston-Gonzalez National Affordable Housing Act (42 USC 12701) , dated November 28, 1990, agencies are required to accept all delinquent homeowners under HUD programs, conventional mortgage programs, and city, state and county mortgage programs. Agencies will assist homeowners and the HUD Field Office during the delinquency and default periods, during the pre-assignment, assignment and post-assignment periods. Delinquent and default counseling are sometimes effective within two or three months. In many instances, six months or more of counseling may be needed to bring the client current. 9/94 Page 2 of 2 w CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Preliminary Objections was provided by U.S. Mail,postage prepaid, first class, to the following: John D. Krohn, Esquire Phelan Hallinan, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 Date: �� f BY: 1, Stephen K. Portko BANK OF AMERICA, N.A., AS : IN THE COURT OF COMMON PLEAS OF SUCCESSOR BY MERGER TO : CUMBERLAND COUNTY, PENNSYLVANIA BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff : CIVIL DIVISION < V. : NO. 13-2582 CIVIL DEBORAH L. GRAHAM, R, Defendant © ' �X CERTIFICATE OF SERVICE ` I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant's First Set of Interrogatories Addressed To Plaintiff was furnished by U.S.Mail,first class, postage prepaid on the date set forth below,to: John D. Krohn, Esquire Phelan Hallinan, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 Attorneys for Plaintiff Dated: Step en K. Port o, Esq. Attorney for Defendant BANK OF AMERICA, N.A., AS : IN THE COURT OF COMMON PLEAS OF SUCCESSOR BY MERGER TO : CUMBERLAND COUNTY, PENNSYLVANIA BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff : CIVIL DIVISION V. : NO. 13-2582 CIVIL `^ DEBORAH L. GRAHAM' -E Defendant �-. w C C) Ate. ,. # CERTIFICATE OF SERVICE s 00 I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant's Request For Production of Documents —First Set Addressed To Plaintiff was furnished by U.S. Mail,first class,postage prepaid on the date set forth below,to: John D. Krohn, Esquire Phelan Hallinan, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 Attorneys for Plaintiff Dated: F,.,o � - Stephen K. Portko, Esq. Attorney for Defendant BANK OF AMERICA, N.A.,AS : IN THE COURT OF COMMON PLEAS OF � SUCCESSOR BY MERGER TO : CUMBERLAND COUNTY, PENNSYLY IIAE' BAC HOME LOANS SERVICING, LP ,r.-,W c.._ - ~: FIK/A COUNTRYWIDE HOME LOANS rte- _nc SERVICING, LP, '' r:y Plaintiff : CIVIL DIVISION ° , V. : NO. 13-2582 CIVIL MC) CD N DEBORAH L.GRAHAM, Defendant REQUEST FOR CONCILIATION CONFERENCE Pursuant to the Administrative Order date February 28,2012 governing the Cumberland County Residential Mortgage Foreclosure Diversion Program,the undersigned hereby certifies as follows: 1. Defendant is the owner of the real property which is the subject of this mortgage foreclosure action; 2. Defendant lives in the subject real property,which is defendant's primary residence; 3. Defendant has been served with a"Notice of Residential Mortgage Foreclosure Diversion Program"and has taken all of the steps required in that Notice to be eligible to participate in a court-supervised conciliation conference. The undersigned verifies that the statements made herein are true and correct. I understand that false statements are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. S� a of Defendant's Counsel/Appointed ointed Date � pp Legal Representative r of De en an Date Signature of Defendant Date BANK OF AMERICA, N.A., AS : IN THE COURT OF COMMON PLEAS OF SUCCESSOR BY MERGER TO : CUMBERLAND COUNTY, PENNSYLVANIA BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, . Plaintiff : CIVIL DIVISION V. : NO. 13-2582 CIVIL DEBORAH L. GRAHAM, Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Request For Conciliation Conference was provided by U.S. Mail, postage prepaid, first class, to the following: Joseph P. Schalk, Esquire PHELAN HALLINAN & SCHMEIG LLP 126 Locust Street Harrisburg, PA 17101 Date: BY: @AQ& Steph n K. Portko, Attorney for Defendant BANK OF AMERICA,N.A., -IN THE COURT OF COMMON PLEAS OF SB/M/TO BAC HOME LOANS CUMBERLAND COUNTY, PENNSYLVANIA SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff ' VS. CIVIL ACTION ; ci NO. 13-2582 CIVIL DEBORAH L. GRAHAM, Defendant CASE MANAGEMENT ORDER -y AND NOW, this Z4 day of July, 2013, the parties having agreed to a conciliation conference, it is hereby ORDERED AND DECREED that: 1. The parties and their counsel are directed to participate in a court-supervised conciliation Conference on J At 30, a0 , at m. in Chambers No. 4 at the Cumberland County Courthouse, Carlisle, Pennsylvania. 2. At least twenty-one (21) days prior to the date of the Conciliation Conference, the defendantiborrower must serve upon the plaintiff/lender and its counsel a copy of the "Cumberland County Residential Mortgage Foreclosure Diversion Program Financial Worksheet" (Form 2)which has been completed by the defendant/borrower. Upon agreement of the parties in writing or at the discretion of the Court, the Conciliation Conference ordered may be rescheduled to a later date and/or the date upon which service of the completed Form 2 is to be made may be extended. Upon notice to the Court of the defendantiborrower's failure to serve the completed Form 2 within the time frame set forth herein or such other date as agreed upon by the parties in writing or ordered by the Court, the case shall be removed from the Conciliation Conference schedule and the temporary stay of proceedings shall be terminated. 3. The defendant/borrower and counsel for the parties must attend the Conciliation Conference in person and an authorized representative of the plaintiff/lender must either attend the Conciliation Conference in person or be available by telephone during the course of the Conciliation Conference. The representative of the plaintiff/lender who participates in the Conciliation Conference must possess the actual authority to reach a mutually acceptable resolution, and counsel for the plaintiff/lender must discuss'resolution proposals with the authorized representative in advance of the Conciliation Conference. If the duly authorized representative of the plaintiff/lender is not available by telephone during the Conciliation Conference, the Court will schedule another Conciliation Conference and require the personal attendance of the authorized representative of the plaintiff/lender at the rescheduled Conciliation Conference. 4. At the Conciliation Conference,the parties and their counsel shall be prepared to discuss and explore all available resolution options which shall include: bringing the mortgage current through a reinstatement; paying off the mortgage;proposing a forbearance agreement or repayment plan to bring the account current over time; agreeing to tender a monetary payment and to vacate in the near future in exchange for not contesting the matter; offering the lender a deed in lieu of foreclosure; entering into a loan modification or a reverse mortgage; paying the mortgage default over sixty months; and the institution of bankruptcy proceedings. 5. All proceedings in this matter are stayed pending the completion of the scheduled conciliation conference. BY THE COURT, Kevi . Hess, P.J. l'oseph Schalk, Esquire Phelan, Hallinan, LLP 126 Locust Street Harrisburg, PA 171.01 For the Plaintiff ./Stephen K. Portko, Esquire 101 South U.S. Route 15 101 Office Center, Suite A Dillsburg,PA 17019 For the Defendants :rlm �► ES �l LL i i I I BANK OF AMERICA,N.A., IN THE COURT OF COMMON PLEAS OF S/B/M/TO BAC HOME LOANS CUMBERLAND COUNTY, PENNSYLVANIA SERVICING, LP F/K/A C") _ COUNTRYWIDE HOME LOANS -D3 ZZ -f MCD SERVICING, LP, ! =M -- Plaintiff �= w C) ° VS. CIVIL ACTION < ' =ca c NO. 13-2582 CIVIL �" a ;"= DEBORAH L. GRAHAM, Ny Defendant i IN RE: CONCILIATION CONFERENCE i Present at a conciliation conference held August 30, 2013, were D. Troy Sellars, Esquire, i attorney for the plaintiff; Stephen Portko, Esquire, attorney for the defendant; and the i homeowner, Deborah Graham. 4 Timely submissions have been made in this case and it appears that this matter is under review for potential modification. In light of the FHA nature of this loan and the more protracted process for review, a'continued conciliation conference will be set approximately sixty (60) i hence. I ORDER i AND NOW,this 30' day of August, 2013, continued conciliation conference is set , for Thursday, October 24, 2013, at 3:30 p.m. in Chambers of the undersigned. I BY THE COURT, i Kevin Hess, P. J. i i ' i I I I ./D. Troy Sellars, Esquire For the Plaintiff ephen Portko, Esquire For the Defendant Am co ,. I i I I i i i C f I I i i I i i i i i i I BANK OF AMERICA, N.A., : IN THE COURT OF COMMON PLEAS OF S/B/M/TO BAC HOME LOANS : CUMBERLAND COUNTY, PENNSYLVANIA SERVICING, LP F/K/A • COUNTRYWIDE HOME LOANS : SERVICING, LP, Plaintiff vs. • CIVIL ACTION • NO. 13-2582 CIVIL DEBORAH L. GRAHAM, • Defendant • IN RE: CONCILIATION CONFERENCE ORDER AND NOW, this ?S` day of October, 2013, continued conciliation conference is set for Monday, December 16, 2013, at 4:00 p.m. in Chambers of the undersigned. BY THE COURT, . 4L Kevi, . Hess, P. J. Troy Sellars, Esquire For the Plaintiff tephen Portko, Esquire For the Defendant :rim C13 I•EbS Kat(;C(..., /0/2 S1/42 BANK OF AMERICA,N.A., • IN THE COURT OF COMMON PLEAS OF S/B/M/TO BAC HOME LOANS • CUMBERLAND COUNTY, PENNSYLVANIA SERVICING, LP F/K/A • COUNTRYWIDE HOME LOANS : SERVICING, LP, Plaintiff • • vs. • CIVIL ACTION r'co • 7 r� NO. 13-2582 CIVIL -,.r `, DEBORAH L. GRAHAM, • ,may ' Defendant : ~ IN RE: CONCILIATION CONFERENCE Present at a conciliation conference held December 16, 2013, were D. Troy Sellars, Esquire, attorney for the plaintiff; Stephen Portko, Esquire, attorney for the defendant; and the homeowner, Deborah Graham. While the homeowner has been diligent in making timely submissions in this case, it appears that there has been less than adequate follow-up. Any documents which remain outstanding will be submitted within ten (10) days. It appears that the homeowner now has a telephone contact directly with the plaintiff. By agreement, continued conciliation conference is set by order of even date herewith. ORDER AND NOW, this /7 day of December, 2013, continued conciliation conference is set for Friday, February 21, 2014, at 2:30 p.m. in Chambers of the undersigned. BY THE COURT, ■4/4( Kevi . Hess, P. J. X/Troy Sellars, Esquire For the Plaintiff Stephen Portko, Esquire For the Defendant CT:rlm /,CS in i l .IL /a/p//3 BANK OF AMERICA,N.A., : IN THE COURT OF COMMON PLEAS OF S/B/M/TO BAC HOME LOANS : CUMBERLAND COUNTY, PENNSYLVANIA SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS : SERVICING, LP, Plaintiff • • vs. : CIVIL ACTION : NO. 13-2582 CIVIL DEBORAH L. GRAHAM, Defendant • IN RE: CONCILIATION CONFERENCE ORDER AND NOW, this 2/ I day of February, 2014, at the request of counsel for the parties, the conciliation conference set for February 21, 2014, is continued to Wednesday, April 16, 2014, at 4:00 p.m. in Chambers of the undersigned. BY THE COURT, 04' ■44( Kevin ;Iv. Hess, P. J. ✓ D. Troy Sellars, Esquire For the Plaintiff -411en Portko, Esquire For the Defendant :rim x m rr i ' CV fr cn 1,0 cp lY 1 ) t� BANK OF AMERICA, N.A., IN THE COURT OF COMMON PLEAS OF S/B/MI TO BAC HOME LOANS : CUMBERLAND COUNTY, PENNSYLVANIA SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS : SERVICING, LP, Plaintiff vs. : CIVIL ACTION : NO. 13-2582 CIVIL DEBORAH L. GRAHAM, Defendant 64 • IN RE: CONCILIATION CONFERENCE ORDER AND NOW, this ' day of April, 2014, on agreement, this matter is removed from the Cumberland County Mortgage Foreclosure Diversion Program and the stay entered in this case is lifted. 4). Troy Sellars, Esquire For the Plaintiff hephen Portko, Esquire For the Defendant :rim BY THE COURT, Key' Hess, P. cr BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, v. DEBORAH L. GRAHAM, Plaintiff Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION : NO. 13-2582 CIVIL PRAECIPE TO WITHDRAW DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT TO THE PROTHONOTARY: Kindly mark Defendant's Preliminary Objections to Plaintiff's Complaint as voluntarily "Withdrawn". Dated: iiS /iq Copy to: Joseph P. Schalk, Esq. PHELAN HALLINAN, LLP 126 Locust Street Harrisburg, PA 17101 Attorneys for Plaintiff Stephen K. Portko, Esquire Attorney I.D. No. 34538 101 U.S. Route 15 South Dillsburg, PA 17019 (717) 432-2538 Attorney for, Defendant CD r y BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, v. DEBORAH L. GRAHAM, Plaintiff Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION : NO. 13-2582 CIVIL CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Praecipe to Withdraw Defendant's Preliminary Objections to Plaintiffs Complaint was provided by U.S. Mail, postage prepaid, first class, to the following: Date: Joseph P. Schalk, Esq. PHELAN HALLINAN, LLP 126 Locust Street Harrisburg, PA 17101 Attorneys for Plaintiff BY: Stephen K. Portko BANK OF AMERICA, N.A., AS : IN THE COURT OF COMMON PLEAS OF SUCCESSOR BY MERGER TO : CUMBERLAND COUNTY, PENNSYLWANIA BAC HOME LOANS SERVICING, LP : F/K/A COUNTRYWIDE HOME LOANS : SERVICING, LP, Plaintiff : CIVIL DIVISION v. : NO. 13-2582 CIVIL DEBORAH L. GRAHAM, Defendant : NOTICE TO PLEAD TO: Bank of America, N.A. John D. Krohn, Esquire Phelan Hallinan, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 Attorneys for Plaintiff You are hereby notified to file a written response to the enclosed DEFENDANT'S ANSWER WITH NEW MATTER & COUNTERCLAIMS TO PLAINTIFF'S COMPLAINT within twenty (20) days from service hereof or a judgment may be entered against you. Dated: 1 Steph n K. Portko, Esq. 101 South U.S. Route 15 Dillsburg, PA 17019 Attorney for Defendant BANK OF AMERICA, N.A., AS : IN THE COURT OF COMMON PLEAS OF SUCCESSOR BY MERGER TO : CUMBERLAND COUNTY, PENNSYLVANIA BAC HOME LOANS SERVICING, LP : F/K/A COUNTRYWIDE HOME LOANS : SERVICING, LP, • Plaintiff : CIVIL DIVISION v. : NO. 13-2582 CIVIL DEBORAH L. GRAHAM, • • Defendant : DEFENDANT'S ANSWER NEW MATTER & COUNTERCLAIMS TO PLAINTIFF'S COMPLAINT IN MORTGAGE FORECLOSURE AND NOW, come Defendant, Deborah L. Graham, by her attorney, who files the within Answer with New Matter & Counterclaims to Plaintiffs Complaint, as follows: 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 1 of the Complaint and therefore denies the allegations thereof. 2. Admitted as to the named Defendant and Defendant's address. Denied as to the remaining averments. On the contrary, Defendant did not make, execute and deliver a mortgage to Plaintiff and Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments contained in paragraph 2 of the Complaint and therefore denies the allegations thereof. 3. Denied. On the contrary, the Complaint fails to allege any facts that MERS was the owner of the note and mortgage or that it validly assigned the same. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments contained in paragraph 3 of the Complaint and therefore denies the allegations thereof. 4. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments contained in paragraph 4 of the Complaint and therefore denies the allegations thereof. 2 5. Denied. On the contrary, Defendant did not make, execute and deliver a mortgage to Plaintiff and the Complaint does not attach a copy of the mortgage that Plaintiff claims was assigned to it. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments contained in paragraph 5 of the Complaint and therefore denies the allegations thereof. 6. Denied. Defendant believes and therefore avers that the mortgage does not set forth the terms of payment but refers to the note, which note is not attached to the Complaint or recorded with the mortgage and, therefore, the allegations are denied. By way of further answer, the terms of the mortgage and applicable FHA servicing guidelines referred to therein, constitute a statutory condition precedent to foreclosure which denies Plaintiff's ability to carry out this foreclosure. 7. Denied. Such amounts are not due because Plaintiff failed to comply with the terms of the mortgage and with a statutory condition precedent to foreclosure which denies Plaintiffs ability to carry out this foreclosure. By way of further answer, the mortgage does not set forth the terms of payment but refers to the note, which note is not attached to the Complaint and, therefore, the allegations are denied. 8. Denied. The allegations of Paragraph 8 of the Complaint are legal conclusions to which no response is required. To the extent an answer may be appropriate, these allegations are denied. On the contrary, Plaintiff is not entitled to recover such fees because the terms of the mortgage and applicable FHA servicing guidelines referred to therein, constitute a statutory condition precedent to foreclosure, which denies Plaintiff's ability to carry out this foreclosure. 9. Denied. To the contrary, the Complaint does not attach the purported Notice of Default or give the dates sent to Defendant in violation of Rule 1019(f) and (i). By way of further answer, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 9 of the Complaint and therefore denies the allegations thereof. 10. Denied. The allegations of Paragraph 10 of the Complaint are legal conclusions to which no response is required. By way of further answer, Plaintiff has not provided proper notice because the terms of the mortgage and applicable FHA servicing 3 guidelines referred to therein, constitute a statutory condition precedent to foreclosure which denies Plaintiff's ability to carry out this foreclosure. WHEREFORE, Defendant respectfully requests that Plaintiffs Complaint be dismissed, and that judgment be entered in favor of Defendant with attorney's fees and costs, and that Defendant be awarded any other relief that this Honorable Court deems appropriate. NEW MATTER 11. Defendant incorporates his answers to paragraphs 1 through 10 above as if set forth at length herein. 12.At the closing of the subject "loan transaction", Defendant was presented with a Promissory Note and Mortgage, naming SIB MORTGAGE CORP. (herein "SIB") as Lender but giving the Security Agreement to Mortgage Electronic Registration Systems, Inc. (herein "MERS") "solely as nominee for Lender". This transaction designated by SIB as a Loan, extended consumer credit which was subject to a finance charge and which was initially payable to SIB. 13. The Loan Seller, SIB, is a financial institution that was paid a fee to pose as a residential mortgage lender, when in fact the source of loan funds and the actual lender (Investors in Certificates) and underwriter (Mortgage Aggregator and Investment Banker) were other parties whose identities and receipt of fees and profits were withheld from Defendant at Closing and continue to be withheld from Defendant by the Plaintiff .contrary to the requirements of Federal Law and applicable State Law. 14. Unknown to Defendant, SIB (the Loan Seller), acting as principal in its relationships with the mortgage broker and mortgage originator, induced the Defendant into a transaction that did not and could not meet normal underwriting standards for a residential mortgage. 15. The Loan Seller posed as a conventional mortgage lender thus leading Defendant to reasonably believe that the Loan Seller, the mortgage broker, and the loan originator had an interest in the success (repayment of the loan) of the transaction that Defendant was induced to believe was being executed at the time of the "closing" of the subject loan transaction. 4 16.In fact, Defendant relied upon the due diligence of the apparent "Lender" (Le., actually the Loan Seller) in accepting and executing the closing documents. In fact, no "lender" was involved in the closing in the sense of an entity performing due diligence and evaluation pursuant to national standards for underwriting and evaluating risk of loaning money in a residential loan closing. 17.Thus no bank or other financial institution actually performing under the standards, rules and regulations governing such institutions was the "lender" which is the basis for Defendant's counterclaims, to wit: that the inflated fees added an undisclosed cost to the loan which when added to the other terms, disclosed and undisclosed, and amortized over the real expected life of the "loan" exceeds the limits set by the State legislature for usury and is not subject to exemption because the presence of a financial institution in the transaction was a ruse in which the form of the transaction covered over and mislead the Defendant as to the real parties in interest and the fees generated by the production of the subject "loan transaction." 18. Defendant was denied compliance under Real Estate Settlement Procedures Act, the Truth in Lending Act, and other applicable state and Federal Statutes which the Plaintiff has either ignored or refused to acknowledge or refused to resolve. 19.The Loan Seller, SIB, was named as the Payee on the subject promissory note, however, MERS was given the mortgage as "nominee for Lender" under the mortgage terms allegedly securing the performance under the subject note. In accordance with State law, the mortgage was recorded in the county records. 20. Notwithstanding the above, and without the knowledge of the Defendant, SIB had entered into Assignment and Assumption Agreements with one or more parties and Pooling and Service Agreements with one or more parties including but not limited to the mortgage aggregator prior to or contemporaneously with the "Closing" of the subject "loan transaction." 21. Under the terms of these agreements, SIB received a sum of money, usually on receiving an application for a loan equal to the gross amount of the loan sought by Defendant plus a fee of 2.5% or more which was allocated to the subject loan transaction. 5 22. Contrary to the documents presented before and during the "closing" of the "loan transaction" the SIB was neither the source of funding nor the "Lender." 23. Thus at the time of recording, the source of funding and the "Lender" was a different entity than the nominal mortgagee and was neither named nor disclosed in any fashion. 24.The security for the "loan" thus secured an obligation that had been paid in full by a third party. Said third party(ies) was acting as a financial institution or "Lender" without even having been chartered or registered to do so despite regulations to the contrary from laws and rules of State or Federal authorities and/or agencies. 25. Defendant does not know what version of documentation was presented to the Mortgage Aggregator and if the Mortgage Aggregator took one or more varying descriptions of the alleged "loan documents" into more than one pool of assets which was eventually sold for the purpose of securitizing the assets of the pool which included the subject loan transaction either once or more than once. 26. By naming MERS in the mortgage as "nominee for Lender" and then subsequently recording an assignment back to Plaintiff in the county records, Plaintiff attempts to conceal the non -recorded Pooling and Services Agreement and a non -recorded Assignment and Assumption Agreement 27. The note from the subject "loan transaction" was eventually allocated into a new corporation (Special Purpose Vehicle) formed for the express purpose of holding the pooled assets under certain terms. 28. The terms included the allocation of payments from one note to pay any deficiency in payment of another note in unrelated "loan transactions" contrary to the terms of each such note which required payments to be allocated to the principal, interest, escrow and fees associated with only that specific "loan transaction." 29. Whether such "deficiency" was caused by the difference between the higher general terms of description of the note or the lower actual payment requirements from the "borrower" is not known due to the refusal of SIB or Plaintiff to provide any such information. 30.The pool assets, including the Plaintiff's subject "loan transaction" were pledged completely to the owners of the "asset-backed securities." All the certificates were then 6 transferred to a Seller who in turn sold the certificates in varying denominations, each of which had slightly different terms depending upon which segment of the pool (tranche) secured the investment. 31. If there is a holder in due course of the Defendant's note arising from the subject "loan transaction" it is the investors who purchased said securities (certificates). Some of said securities are held by the original purchaser thereof, others were sold at weekly auction markets, others were paid by re-sales of property that was "secured", others were paid from prepayments, others were paid by sale at full or partial price to the investment bank that originated the entire transaction, some of which might be held by the Federal Reserve as non- recourse collateral, and others might have been paid by one or more of the insurance, credit default swaps, cross guarantees or cross collateralization of the segment of the pool that secured the relevant investor who owned certificates backed by a pool of assets that included the subject "loan transaction." 32. In order for this Plaintiff to maintain legal standing in connection with the subject loan transaction they are required to show the entire chain of title of the note and the entire chain of title of the mortgage. They have concealed this information leading Defendant to conclude that the Plaintiff cannot produce such evidence of a complete chain of title or are intentionally withholding the information that would show breaks in such chain. 33. The fact that the "loan" was table-funded without a disclosed source of funds and without disclosing thousands of dollars in fees all contrary to the requirements of state and federal law was withheld from Defendant by SIB and continues to be withheld by Plaintiff 34. Defendant alleges the closing was an "alleged loan closing" because in fact it was part of an undisclosed hidden illegal scheme to issue unregulated securities (mortgage backed securities) based upon the negotiation of non-negotiable notes, the terms of which had been changed, altered, amended or modified AFTER the execution by the Defendant. 35. SIB then purported to "negotiate" the note by adding terms which allowed the proceeds of the note to be allocated to the payment of the notes of other borrowers and adding 7 co -obligors as aforesaid through insurance, guarantees, additional collateralization and reserves all of which were undisclosed, as aforesaid. 36.The note was not negotiable because it was no longer an unconditional promise to pay by the original borrower. The terms had changed, adding conditions, to payment that were inherent in the "securitization process" that SIB fraudulently promoted. 37. Said "negotiation" of Defendant's note was in actuality the theft of her identity to hide the vast number of "toxic waste" mortgages, notes and obligations that the enterprise SIB was selling up through their "securitization" chain. 38. The end result of the false and misleading representations and material omissions of SIB as to the true nature of the mortgage loan actually being processed, which said SIB had actual knowledge was in direct conflict with the original Uniform Residential Loan Application, early TIL, and Defendant's stated intentions and directions to said SIB at the time of original application for the loan, fraudulently caused Defendant to execute predatory loan documents. 39. At no time whatsoever did SIB ever advise Defendant (nor, as far as Defendant can determine, any "investor" in certificates of mortgage-backed securities) that: a. the mortgage loan being processed was not in her best interest; b. that the mortgage loan was an inter -temporal transaction (transaction where terms, risks, or provisions at the commencement of the transaction differ at a later time) on which Defendant was providing cover for SIB's illegal activities; c. that the originating "lender", that being SIB and/or undisclosed third parties, had no intention of retaining ownership interest in the mortgage loan or fully servicing same and in fact may have and probably had already pre -sold the loan, prior to closing, to a third party mortgage aggregator pursuant to previously executed documentation (Assumption and assignment Agreement, Pooling Services Agreement, etc.) all executed prior to Defendant's "loan Closing." d. that the mortgage loan was actually intended to be repeatedly sold and assigned to multiple third parties, including one or more mortgage aggregators and investment bankers, for the ultimate purpose of bundling the Defendant's mortgage with hundreds or perhaps thousands of others as part of a companion, support, or other tranche in connection with the creation of a REMIC security known as a Collateralized Mortgage 8 Obligation ("CMO"), also known as a "mortgage-backed security" to be sold by a securities firm (and which in fact ended up as collateral for Asset -Backed Securities Certificates, created the same year as the closing); e. that the mortgage instrument and Promissory Note may be sold, transferred, or assigned separately to separate third parties so that the later "holder" of the Promissory Note may not be in privity with or have the legal right to foreclose in the event of default; and f. that in connection with the multiple down line resale and assignment of the mortgage and Promissory Note that assignees or purchasers of the Note may make "pay -downs" against the Note which may have an effect on the true amount owed by the Defendant on the Note. 40. As a result of the closing and in connection therewith, SIB placed the Defendant into a pool of a sub -prime mortgage programs, with SIB intentionally misleading Defendant and the other borrowers and engaging in material omissions by failing to disclose to Defendant and other borrowers the fact that the nature of the mortgage loan applications had been materially changed without Defendant's knowledge or consent. 41. SIB was under numerous legal obligations as fiduciaries and had the responsibility for overseeing the purported loan consummation to insure that the consummation was legal, proper, and that Defendant received all legally required disclosures pursuant to the Truth -In- Lending Act and RESPA both before and after the closing. 42. Defendant, not being in the consumer lending, mortgage broker, or residential loan business, reasonably relied upon the SIB to insure that the consumer credit transaction was legal, proper, and complied with all applicable laws and regulations. 43.SIB assigned or attempted to assign the Note and mortgage to parties who did not take these instruments in good faith or without notice that the instruments were invalid or that Defendant had a claim in recoupment. AFFIRMATIVE DEFENSES (Plaintiff Lacks Standing) 44. Plaintiff is not the true owner of the claim sued upon, is not the real party in interest and is not shown to be authorized to bring this foreclosure action. 9 45. Upon information and belief, the mortgage note has been paid in whole or in part by one or more undisclosed third party(ies) who, prior to or contemporaneously with the closing on the "loan", paid the originating lender (SIB) in exchange for certain unrecorded rights to the revenues arising out of the loan documents. 46. Upon information and belief and in connection with the matters the subject of paragraph "45" above, Plaintiff (foreclosing party) has no financial interest in the note or mortgage. 47. Upon information and belief, the original note was destroyed or was transferred to a structured investment vehicle which may be located offshore, which also has no interest in the note or mortgage or revenue thereunder. 48. Upon information and belief, the revenue stream deriving from the note and mortgage was eviscerated upon one or more assignments of the note and mortgage to third parties and parsing of obligations as part of the securitization process, some of whom were joined as co -obligors and co-obligeesin connection with the closing. 49.To the extent that SIB has been paid on the underlying obligation or has no legal interest therein or in the note or mortgage, or does not have lawful possession of the note or mortgage, Plaintiff's allegations of possession and capacity to institute foreclosure constitute a fraud upon the court. 50. Based upon one or more of the affirmative defenses set forth herein, Defendant is entitled to a release and satisfaction of the note and mortgage and dismissal of the foreclosure claim with prejudice. (Failure to State a Cause of Action) 51. Plaintiff has failed to state a claim upon which relief may be granted. 52. If any monies are determined to be owing to Plaintiff by Defendant, Plaintiffs recovery is limited by and subject to Defendants' right of setoff. (Failure of Contractual Condition Precedent) 53. Because Defendant's loan is an FHA -insured loan, Plaintiff was required to comply with the payment forbearance, mortgage modification, and other foreclosure prevention loan servicing or collection requirements imposed on Plaintiff and the 10 subject mortgage by federal regulations promulgated by HUD, pursuant to the National Housing Act, 12 U.S.C. § 1710(a). These requirements must be followed before a mortgagee may commence foreclosure. 24 C.F.R. Part 203(C), Servicing Responsibilities Mortgagee Action and Forbearance Paragraph 9(a) of the subject mortgage and Paragraph 6(B) of the subject note. 54. Plaintiff failed to provide notices and follow all of the FHA servicing guidelines/HUD handbooks as required by and/or that complies with Paragraphs 9(d) and 13 of the subject mortgage. 55. Plaintiff failed to make any reasonable efforts as required by federal regulations and the terms of the note and mortgage to arrange a face to face meeting with Defendant before three full monthly installments were unpaid to discuss her circumstances and possible foreclosure avoidance. 24 C.F.R. §203.604. 56. Plaintiff is required under federal law to adapt its collection and loan servicing practices to Defendant's individual circumstances and to re-evaluate these techniques each month after default and Plaintiff failed to do so. 57. Plaintiff failed to perform its servicing duty to Defendant to manage the subject mortgage as required by FHA's special foreclosure prevention workout programs which must include and allow for the restructuring of the loan whereby the Defendant pays out the delinquency in installments or advances to bring the mortgage current. 58. Plaintiff further denied Defendant access to a repayment plan or special forbearance in the form of a written agreement that would reduce or suspend her monthly mortgage payments for a specific period to allow her time to recover from the financial hardship she was suffering through no fault of her own. Such a plan can involve changing one or more terms of the subject mortgage in order to help Defendant bring the claimed default current, and thereby prevent foreclosure. 59. Plaintiff's failure to comply with the FHA repayment plan or special forbearance workout programs denied Defendant the required access to explore alternatives to avoid foreclosure prior to the addition of additional foreclosure fees and costs. 60. Defendant is being denied and deprived by Plaintiff of her right to access the required mortgage servicing. Plaintiff is illegally subjecting her to this foreclosure action, thereby forcing her to defend the same while charging illegal court costs, other related fees, 11 and attorney fees. Defendant is having her credit slandered and negatively affected, all of which constitutes irreparable harm to her the purpose of injunctive relief. 61.As a proximate result of the Plaintiff's unlawful actions, Defendant continues to suffer the irreparable harm described above for which monetary compensation is inadequate. 62. Defendant has the right to access the foreclosure prevention servicing prescribed by FHA laws, regulations, orders and guidelines which are being denied to her by the Plaintiff. 63. As a result, Defendant has been denied a good faith opportunity, pursuant to the mortgage and the servicing obligations of the Plaintiff, to avoid acceleration and this foreclosure. (Failure of Good Faith & Fair Dealing: Unfair & Unacceptable Loan Servicing) 64. Plaintiff intentionally failed to act in good faith or to deal fairly with the subject Defendant by failing to follow the applicable standards of residential single family mortgage servicing as described in these Affirmative Defenses thereby denying this Defendant access to the residential mortgage servicing protocols applicable to the subject note and mortgage. (Unclean Hands) 65. The plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this Court. 66.The Plaintiff's unclean hands result from the Plaintiff's improvident and predatory intentional failure to comply with the required FHA pre -suit loss mitigation options prior to bringing the subject foreclosure and has failed to consider Defendant for the requisite loan modification required for consumers' whose lenders/serviciers received TARP funds under the Making Home Affordable Program. 67. Plaintiff filed and continues to maintain this action even though it knew it did not have standing to file this lawsuit and then proceeded to manufacture an assignment of mortgage to give the impression it had and does have standing. 12 68.As a matter of equity, this Court should refuse to foreclose this mortgage because acceleration of the note would be inequitable, unjust, and the circumstances of this case render acceleration unconscionable. 69.This court should refuse the acceleration and deny foreclosure because Plaintiff has waived the right to acceleration or is estopped from doing so because of misleading conduct and unfulfilled contractual and equitable conditions precedent. (Illegal Charges Added to Balance) 70. Plaintiff has charged and/or collected payments from Defendant for attorney fees, legal fees, litigation attorney fees, foreclosure costs, late charges and other charges and advances, and predatory fees and charges that are not authorized by or in conformity with the terms of the subject note and mortgage. 71. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance Plaintiff claims is due and owing under the subject note and mortgage. (Assignment is a nullity) 72. Plaintiff alleges possession of the note "directly or through an agent" but fails to claim it is the holder of the note with rights of enforcement. In fact, Plaintiff claims that MERS purportedly assigned the mortgage to it, Plaintiff does not allege any facts about the chain of title of the note that was originally made payable to SIB. 73.The note and mortgage are inseparable; the former as essential, the latter as an incident; thus, an assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity. 74. Plaintiff lacks standing to proceed with this litigation because the assignment of the mortgage without the note is a nullity. WHEREFORE, Defendant demands the Plaintiff's Complaint be dismissed with prejudice, and for her attorney's fees and costs and for all other relief to which this Court finds Defendant entitled. 13 COUNTERCLAIMS GENERAL ALLEGATIONS 75.The Defendant reasserts and alleges, as his statement of facts, paragraphs 1 through 74 above as if set forth at length herein. 76. This counterclaim is an action in support of a single consumer victim of predatory lending who was fraudulently induced into a mortgage loan transaction, for which she did not bargain, that was not in her interest, that was misrepresented and coerced, that incorporated falsified documents, that violated state laws, that violated federal laws, that violated common laws, and for which plaintiff -counter -defendant has profited or is attempting to profit to the consumer's detriment. 77. Defendant's home, encumbered by a mortgage given to Mortgage Electronic Registration Systems, Inc. ("MERS") solely as "nominee for Lender" and Lender's successors and assigns and made with SIB the originator named as Lender, is the property at issue in this foreclosure action. 78. Defendant avers that SIB issued securities collateralized by the mortgage under a master pooling and servicing agreement by which all legal and equitable interest was transferred to undisclosed certificate holders; and, accordingly, Plaintiff SIB is not the holder or owner of the note. 79. Defendant avers that SIB, by selling and securitizing the mortgage and note given by Defendant as a publicly traded security available on an open and public securities market, had already recovered (i.e. been paid fair market value) any investment it had made in the Defendant's note, and accordingly, SIB had thereafter no injury standing or personal stake in this action. 80. Plaintiff falsely holds itself out to be the holder in due course or lawfully designated agent for the true holder in due course. 81. Plaintiff is not the genuine creditor, and, further, SIB engaged in the sham of securitized mortgage finance without affording or extending any genuine credit to Defendant, solely for private (corporate) enrichment through a combination of securities fraud (the securitization of mortgage notes without benefit or credit to the 14 consumer "grantor" such as the defendant herein or disclosure in the "origination" process of creating the security). 82. Defendant alleges that her signed mortgage agreement itself was bundled, sold, and transferred together with the note as a collateral backed obligation, and that Plaintiff is aware of this fact, and of the unavailability of the current actual note owner to appear in court, due to lack of actual interest in the subject property, and that Plaintiff has profited from this transaction without giving any notice or credit to the Defendant (whose interest in the property should be adjudicated and evaluated in light of the fiduciary accounting demanded and violates of fiduciary duty alleged in the following paragraphs). 83.What renders this action "typical" of a growing number of mortgage foreclosure proceedings in the United States and yet completely illegal is that Plaintiff is acting as servicer only and, upon information and belief, cannot show that it owns, or if it claims to own, how it acquired by purchase, as opposed to mere "nomination" any legal or equitable interest in the note, for which note SIB, in fact, was compensated by selling the note. 84. Defendant believes and therefore alleges that Plaintiff does not own the original ink - signed "paper" note and that any interest or authority it may have regarding this note is divorced from legal or equitable rights of ownership. 85. Further, because Defendant's mortgage was securitized without Defendant's knowledge or consent, the mortgage was rendered unenforceable. Securitization of the mortgage created restrictions upon modification of the mortgage which had not been approved by the mortgagor. Securitization also converted the mortgage note from an alienable, transferable instrument which was and could be sold into a instrument which cannot be sold, transferred or alienated, without amending the terms and conditions of the mortgage. In either case, the action renders the mortgage unenforceable as a matter of law. Plaintiff lacks standing because plaintiff does not own or hold the note and cannot have the power and authority to represent the actual owners of the note, as a matter of law. 86. Additionally, in filing its foreclosure action, Plaintiff admits that the mortgage is FHA - insured. (emphasis added) 15 87. The servicing of FHA Insured Mortgages is subject to the provisions of the Department of Housing and Urban Development ("HUD") Servicing Regulations as set forth at 24 CFR 203.500 to 24 CFR 203.508 and 24 CFR 203.600 to 24 CFR 203.616. In addition HUD Handbooks 4330.1 and 4330.2 further delineate these servicing requirements for FHA Insured Mortgages. 88. FHA loans have special servicing requirements, including notice of counseling within 45 days of default and a face-to-face meeting with the borrower within 90 days of default. 24. C.F.R. §203.500 et seq. 89. Specifically, Plaintiff must send to Defendant a list of HUD -approved counseling agencies in Pennsylvania within 45 days of default. 90.AIso, pursuant to HUD regulations and FHA guidance, FHA -approved mortgage lenders and their servicers are required to engage in loss -mitigation efforts to avoid the foreclosure of HUD -insured single family residential mortgages. 91. Under the Treasury's various rescue and stimulus programs, the Plaintiff received monetary incentives from the Federal government in exchange for the commitment to make efforts to modify defaulting borrowers' single family residential mortgages. 92. In the course of its servicing and oversight of Defendant's mortgage loan, Plaintiff violated these federal laws, program requirements and contractual requirements governing loss mitigation. 93. Plaintiff did not send and Defendant did not receive the counseling notice with list of HUD -approved counseling agencies in Pennsylvania. 94. Plaintiff did not provide Defendant with a list of HUD -approved counseling agencies or a face to face meeting and Plaintiff has not given notice of Defendant's right to obtain counseling advice and assistance as mandated by applicable HUD servicing guidelines. 95. FHA lenders have an equitable obligation to follow the guidelines established in the HUD Handbook in the event of a mortgagor's default. 96. HUD Regulations and servicing policies as well as Pennsylvania law require a foreclosing FHA Insured Mortgagee to service the subject mortgage in accordance with the appropriate HUD servicing regulations or guidelines before acceleration or foreclosure. 16 97.A foreclosing HUD Insured Mortgagee who does not send the required notice may not proceed with foreclosure, the foregoing requirement being mandatory. 98.The mortgage document itself indicates that the regulations dealing with FHA insured mortgages take priority [i.e. "This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary]. 99. Because Plaintiff has not followed or complied with the HUD guidelines and foreclosure prevention remedies available to Defendant, this Court lacks subject matter jurisdiction to proceed with this foreclosure action and should dismiss the foreclosure proceeding. 100. Plaintiff has not, within the reasonable expectations of good faith and fair dealing, afforded to Defendant the foreclosure prevention remedies available under the HUD guidelines. COUNT 1: DECLARATORY AND INJUNCTIVE RELIEF 101. The Defendant reasserts and alleges, as his statement of facts, paragraphs 1 through 100 above as if set forth at length herein. 102. This is an action for declaratory and injunctive relief against the Plaintiff. 103. The Plaintiff has no right to pursue this foreclosure because the Plaintiff has failed to provide servicing of this residential mortgage loan in accordance with the controlling servicing requirements prior to filing this foreclosure action. 104. Defendant has a right to receive foreclosure prevention loan servicing from the Plaintiff before the commencement or initiation of this foreclosure action. 105. Defendant is in doubt regarding her rights and status of a borrower under the National Housing Act that controls and applies to the subject mortgage. Defendant is now subject to this foreclosure action by reason of the above described illegal acts and omissions of the Plaintiff. 106. Defendant is being denied and deprived by Plaintiff of not only her right to access the required troubled mortgage loan servicing imposed on the plaintiff and applicable to the subject mortgage loan by the National Housing Act but also under the Pooling and Servicing or trust Agreement that controls and applies to the subject mortgage. 17 Defendant is being illegally subjected by the Plaintiff to this foreclosure action, being forced to defend the same and she is being charged illegal predatory court costs and related fees, and attorney fees. Defendant is having her credit slandered and negatively affected, all of which constitutes irreparable harm to Defendant for the purpose of injunctive relief. 107. As a proximate result of the Plaintiff's unlawful actions set forth herein, Defendant continues to suffer the irreparable harm described above for which monetary compensation is inadequate. 108. Defendant has a right to access the foreclosure prevention servicing prescribed by the National Housing Act and under the Pooling and Servicing or trust Agreement that controls and applies to the subject Defendant which right is being denied to her by the plaintiff. These wrongful and predatory acts committed by the plaintiff, and/or through the plaintiff's agents, employees or predecessor in interest were intentional and deceptive. 109. Additionally, the Plaintiff has no right to pursue a foreclosure because the real party in interest on the lender side may be the owner of the asset backed security issued by the SPV, the insurer through some claim of equitable interest, or the Federal government through the United States Department of the Treasury or the Federal Reserve. The security is a "securitized" bond deriving its value from the underlying mortgages of which the subject mortgage is one. 110. Defendant is informed and believes and thereon alleges that, at all times herein mentioned, the claim of Plaintiff is without any right whatsoever, and Plaintiff has no legal or equitable right, claim, or interest in said property. 111. Plaintiff does not properly hold the mortgage and note it seeks to enforce and Plaintiff has failed to join the proper party with the rights of enforcement. Therefore, Plaintiff has failed to join indispensable parties. 112. There is a substantial likelihood that Defendant will prevail on the merits of her counterclaims. WHEREFORE, Defendant requests judgment against Plaintiff, for declaratory and injunctive relief to restrain Plaintiff from further unlawful conduct, civil penalties, attorney 18 fees and costs, and all other and further relief as the Court may deem just proper and equitable. COUNT 11: VIOLATIONS OF UNFAIR TRADE PRACTICE ACT 113. Paragraphs 1 through 100 of Defendant's Answer and New Matter are incorporated herein as if set forth at length herein. 114. The actions of Plaintiff alleged hereinabove constitute a transaction, practice or course of business which operated as a fraud or deceit upon Defendant. 115. The acts, conduct or activity of Plaintiff described hereinabove constitute a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-2 et seq., ("Act") in that Plaintiff: made false statements or omissions ; failed to disclose the true nature and identity of the mortgage loan transaction and securitization of note; failed to comply with the mortgage document; failed to comply with applicable FHA servicing guidelines and HUD Handbooks; failed to comply with express statements and assurances; failed to acknowledge and act promptly upon oral or written communication with respect to Defendant's dispute of Plaintiff's mortgage loan servicing activities without providing applicable mortgage servicing protocols and foreclosure prevention assistance; failed to give proper notices; and failed to give credit for improper charges to account. 116. Plaintiff's mortgage servicing activities violated the Act in the following particulars: a. The Plaintiff is claiming, attempting and threatening to collect and enforce this consumer mortgage debt by this foreclosure action when the Plaintiff knows that the right to pursue foreclosure does not exist. b. Plaintiff does not have a legal right to pursue this foreclosure because the plaintiff was required and has failed to first comply with the foreclosure prevention loan servicing obligations imposed on Plaintiff prescribed by the National Housing Act and under the Pooling and Servicing or trust Agreement that controls and applies to the subject mortgage loan. c. These foreclosure prevention loan servicing obligations are imposed on the Plaintiff pursuant to the National Housing Act, 12 U.S.C. Section 1710(a) and/or the Pooling and Servicing or trust Agreement that controls and applies to the subject mortgage loan. 19 d. These special troubled mortgage loan servicing obligations are conditions precedent to the commencement of this foreclosure action because the Plaintiff cannot state a cause of action for foreclosure of single family residential mortgage loan until the Plaintiff complies with the applicable troubled loan servicing obligations described in the affirmative defenses incorporated herein by reference. e. Plaintiff is not the true current owner of the note because Plaintiff does not know the true holder in due course of the note after SIB sold it and, further, it is a fraud and violation of the Pennsylvania UDAP to falsely claim to be a lawful or nominee for the true holder in due course in order to collect a note for a party actually unknown to Plaintiff SIB. f. Plaintiff knew or should have known that SIB took advantage of Defendant and wrongfully manipulated and controlled the mortgage financing unfairly to disadvantage Defendant, who was kept in the dark and deprived of a full and complete understanding of the mortgage credit transaction upon when she entered into, and, that SIB had a duty to divulge the true nature of the mortgage financing transaction, including that the note would be sold to parties unknown and perhaps unascertainable and that SIB and Plaintiff would profit from the origination of Defendant's note immediately upon Defendant's signing of the note which SIB originated. g. By creating a mortgage backed security or collateral backed obligation of the undisclosed sale, securitization, and transfer of Defendant's mortgage note and contractual obligation and without consent, or even disclosure or notice of the intent to securitize and bundle Defendant's identity in the creation of a securitized equity or collateral based obligation, effected a conversion by fraud of the identity and other intangible rights of Defendant in this transaction. h. Defendant alleges that she made payments to Plaintiff in reliance on the aforesaid misrepresentations of fact concealing the actual sale or transfers of the legal and equitable interests in her note to another party, and was thereby injured, by suffering actual monetary losses. i. Plaintiff has engaged in unfair and deceptive trade practices by its participation in the sale or transfer of securities (mortgage notes) into securitized bundles, and also in connection with concealing the true nature of the transactions involved in mortgage note 'lending" or "origination" as defined under the U.C.C. and thereby swindled this Defendant of many thousands of dollars above the actual value of the note issued and signed by Defendant. 20 j. The securitization of Defendant's mortgage note intended for sale on public securities markets by SIB and participation by Plaintiff in this scheme is a deceptive and misleading devise, scheme, and artifice to defraud Defendant. 117. In addition, as servicer of the residential mortgage loan, Plaintiffs failure to discharge its required loan modification obligations, and related unfair and deceptive practices, include, but are not limited to the following: a. Wrongfully denying Defendant's modification application(s); b. Failing to respond to Defendant's inquiries; c. Failing to gather or losing documentation or other paperwork submitted by Defendant for loan modification; d. Providing false or misleading information to Defendant while initiating foreclosure where Defendant was in good faith actively pursuing loss mitigation remedies; e. Failing to provide accurate and timely information to Defendant who was in need of, and eligible for, Toss mitigation services, including a loan modification; f. Miscalculating Defendant's eligibility for loan modification programs and improperly denying loan modification relief to Defendant; g. Misleading Defendant by representing that her loan modification application would be handled promptly when Plaintiff failed to act on the loan modification in a timely manner; h. Failing to properly process Defendant's application for loan modification, including failing to account for documents submitted by Defendant and failing to respond to Defendant's reasonable request for information and assistance; i. Misleading Defendant by providing false or deceptive reasons for denial of loan modification. 118. By failing to provide Defendant with proper notice and by failing to fully and fairly disclose all material facts regarding Defendant's mortgage account, Plaintiff has engaged in unfair and deceptive acts or practices within the meaning of the Act, 73 P.S. § 201-1et seq. and Defendant is entitled to recover treble damages. 21 119. Plaintiff continues to claim, attempt, and threaten to enforce this mortgage debt through acceleration and foreclosure when the Plaintiff knows that such conduct is in bad faith because the Plaintiff has charged and collected money from defendant that she did not owe; forced defendant into deepening indebtedness and then failed to meet the contractual and statutory conditions precedent before filing this action to collect this consumer debt. 120. As a result of the Plaintiffs failure to properly service this mortgage loan before filing this foreclosure action, Defendant has been damaged and Defendant seeks to recover her actual and statutory damages from Plaintiff under 73 P.S. Section 201-1 et seq WHEREFORE, Defendant demands judgment against Plaintiff, for an award of TREBLE DAMAGES in defendant's favor and against the plaintiff for her actual or statutory damages whichever is greater and for her attorney's fees and costs and for all other relief to which this Court finds Defendant entitled pursuant to 73 P.S. § 201-9.2. COUNT 111: BREACH OF CONTRACT 121. Paragraphs 1 through 100 of Defendant's Answer and New Matter are incorporated herein as if set forth at length herein. 122. The conduct, practices and activities of Plaintiff described herein constitute a material breach of the mortgage agreement and, further, constitute a material breach of the representations, statements and undertakings set forth hereinabove, and made expressly or implicitly a part of said agreement for which breach Defendant is entitled to recover damages. 123. Plaintiff has breached its agreement and its duty to exercise good faith to Defendant's detriment. WHEREFORE, defendant requests judgment against Plaintiff in an amount not yet quantified but to be proven at trial and such other amounts to be proven at trial, and for costs and attorneys' fees; that the Court find that the transactions the subject of this action are illegal and are deemed void; that the foreclosure which was instituted be deemed and 22 declared illegal and void and that further proceedings in connection with the foreclosure be enjoined; and for any other relief which is just and proper. COUNT IV: FRAUDULENT MISREPRESENTATION 124. Paragraphs 1 through 100 of Defendant's Answer and New Matter are incorporated herein as if set forth at length herein. 125. Plaintiffs predecessors knowingly and intentionally concealed material information from Defendant which is required by Federal Statutes and Regulations to be disclosed to the Defendant both before and at the closing. 126. Plaintiffs predecessors also materially misrepresented material information to the Defendant with full knowledge that their affirmative representations were false, fraudulent, and misrepresented the truth at the time said representations were made. 127. Under the circumstances, the material omissions and material misrepresentations of Plaintiff's predecessors and ongoing misrepresentations by Plaintiff were malicious. 128. Defendant, not being an investment banker, securities dealer, mortgage lender, mortgage broker, or mortgage lender, reasonably relied upon the representations of SIB in agreeing to execute the mortgage loan documents. 129. Had Defendant known of the falsity of SIB's representations, Defendants would not have entered into the transactions the subject of this action. 130. SIB engaged in material omissions and material misrepresentations that constitute fraud in the inducement and Plaintiff thereafter engaged in material omissions and material misrepresentations to hide and conceal the true nature of the transaction and securitization of Defendant's mortgage loan. WHEREFORE, defendant requests judgment against Plaintiff as follows: (a) common law rescission of the mortgage loan transactions; (b) termination of the mortgage and security interest in the property the subject of the mortgage loan documents created in the transaction; (c) return of any money or property paid by the Defendant including all payments made in connection with the transactions; (d) an amount of money equal to treble the finance charge in connection with the transactions; (e) relinquishment of the right to retain any proceeds; and (f) actual damages in an amount to be determined at trial, including attorneys' fees. 23 COUNT V: EQUITABLE RELEIF 131. Paragraphs 1 through 100 of Defendant's Answer and New Matter are incorporated herein as if set forth at length herein, 132. The real party in interest on the lender side may be the owner of the asset backed security issued by the SPV, the insurer through some claim of equitable interest, or the Federal government through the United States Department of the Treasury or the Federal Reserve. The security is a "securitized" bond deriving its value from the underlying mortgages of which the subject mortgage is one. Thus Defendant is entitled to quiet title against SIB and/or Plaintiff, clearing title of the purported subject mortgage encumbrance. 133. Defendant is informed and believes and thereon alleges that, at all times herein mentioned, the claim of SIB and/or Plaintiff is without any right whatsoever, and said SIB and/or Plaintiff have no legal or equitable right, claim, or interest in said property. 134. Defendant therefore seeks a declaration that the title to the subject property is vested in Defendant alone and that SIB and Plaintiff, and each of them, be declared to have no estate, right, title or interest in the subject property and that said SIB and Plaintiff be forever enjoined from asserting any estate, right, title or interest in the subject property adverse to Defendant herein. WHEREFORE, in this Count, Defendant prays this Court will enter judgment against Plaintiff as follows: (a) For an order compelling said SIB and/or Plaintiff to transfer or release legal title and alleged encumbrances thereon and possession of the subject property to Defendant herein; (b) For a declaration and determination that Defendant is the rightful holder of title to the property and that SIB and/or Plaintiff be declared to have no estate, right, title or interest in said property; (c) For a judgment forever enjoining said SIB and/or Plaintiff from claiming any estate, right, title or interest in the subject property; (d) For costs of suit herein incurred; (e) For such other and further relief as the court may deem proper 24 DEMAND FOR JURY TRIAL Defendant demands trial by jury of all matters so triable as a matter of right. Date: 25 Respectfully submitted, _.... Steph n K. Portko, Esquire 34538 101 South U.S. Route 15 Dillsburg, PA 17019 (717)432-9706 Attorney for Defendant Graham VERIFICATION I, Deborah L. Graham, hereby acknowledge that I am Defendant in the foregoing pleading, that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. DATE: 9 - c -2 -- Deborah L. Graham CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant's Answer with New Matter and Counterclaims to Plaintiffs Complaint was provided by U.S. Mail, postage prepaid, first class, to the following: Date: John D. Krohn, Esquire Phelan Hallinan, LLP 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 BY: 26 Stephen K. Portko IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/KJA COUNTRYWIDE HOME LOANS SERVICING, LP, Plaintiff, v. DEBORAH L. GRAHAM, Defendant, No. 13-2582 CIVIL ENTRY OF APPEARANCE 2- m r - C/) rrl CT1 To the Prothonotary: Kindly enter the appearance of Molly Q. Campbell as co -counsel for Plaintiff Bank of America, N.A., as Successor by Merger to BAC Home Loans Servicing, LP f/k/a Countrywide Home Loans Servicing, LP ("Bank of America" or "Plaintiff"), in the above -captioned proceeding. Mo1W Q. pbell ( A. I.D. No 311289) REED SMITH LLP Three Logan Square 1717 Arch Street, Suite 3100 Philadelphia, PA 19103-7301 Telephone: (215) 851-8100 Facsimile: (215) 851-1420 Co -Counsel for Defendant DATED: September 24, 2014 Bank of America, NA. CERTIFICATE OF SERVICE I, Molly Q. Campbell, hereby certify that I caused to be served a true and correct copy of the foregoing Entry of Appearance this 24th day of September, 2014 by mailing same via First Class U.S. Mail, postage prepaid, upon the following counsel of record: Stephen K. Portko, Esq. 101 SouthU.S. Route 15 Dillsburg, PA 17019 Molly Q. Campbell Attorneys for Plaintiff Attorney I.D. No. 311289 REED SMITH LLP Three Logan Square Suite 3 100 1717 Arch Street Philadelphia, PA 19103 (215) 851-8100 (215) 851-1420 (facsimile) mqcampbell@reedsmith.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA En BANK OF AMERICA,N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP No. 2013-2582 Plaintiff V. MORTGAGE FORECLOSURE DEBORAH L. GRAHAM Defendant PRELIMINARY OBJECTIONS OF PLAINTIFF BANK OF AMERICA,N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP, F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP. TO THE COUNTERCLAIMS OF DEFENDANT Pursuant to Pa. R. Civ. P. 1028(a)(2), (4) and 1148, Plaintiff Bank of America, N.A, as Successor By Merger To BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing LP ("Plaintiff'), by and through its counsel,hereby sets forth its Preliminary Objections to the Counterclaims of Defendant Deborah L. Graham ("Defendant"), as follows: FACTUAL BACKGROUND 1. This case is a foreclosure action based on a failure to make payments due on a mortgage loan. 2. On April 24, 2003, Defendant executed a Note in the amount of$93,941.00 ("Note")which is secured by a Mortgage ("Mortgage") against Defendant's real property located at 902 Allenview Drive, Mechanicsburg, Pennsylvania 17055-8604 (the "Property"). Copies of Defendant's Note and Mortgage are attached hereto as Exhibits A and B, respectively. 3. SIB Mortgage Corporation was the lender("SIB" or"Lender"). See Ex. A. 4. Defendant made executed and delivered said Mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for the Lender. See Defendant's New Matter at¶ 12. 5. Thereafter,the Mortgage was assigned(the "Assignment") to Plaintiff on April 23, 2012. A copy of the Assignment is attached hereto as Exhibit C. 6. The Assignment was recorded on April 30, 2012 in Mortgage Book 1809, Page 2738 in the Cumberland County Office of the Recorder. See Exhibit C. 7. Defendant defaulted on her Mortgage by failing to make the December 1, 2012 payment and all payments thereafter(the "Default"). Comp. ¶6. 8. On May 9, 2013, Plaintiff brought this Complaint in foreclosure against Defendant in light of Defendant's Default ("Foreclosure Complaint"). A copy of the Foreclosure Complaint is attached hereto as Exhibit D. I "[T]he trial court[may]properly consider those documents[]which were attached to the defendants' preliminary objections"where the plaintiff averred the existence of such documents. Martin v. Commwealth, Dep't of Transp.,556 A.2d 969,971-72(Pa.Commw. Ct. 1989)(citations omitted). See also Babiarz v. Bell Atl.-Pa., Inc., No. 1863,2001 WL 1808554,at*14(Pa.Ct. Com.Pl.Nov.20,2001);New Matter at¶ I 1 (alleging existence of mortgage and assignment);Defendant's Answer,New Matter and Counterclaims("Answer,""New Matter,"or "Counterclaims,"respectively)at 112(averring existence of Note and Mortgage). - 2 - 9. On September 12, 2014, Defendant filed her Answer,New Matter, and Counterclaims. Defendant purports to assert five Counterclaims against Plaintiff: (1) Declaratory and Injunctive Relief; (2) Violations of the Unfair Trade Practices and Consumer Protection Law("UTPCPL"); (3) Breach of Contract; (4) Fraudulent Misrepresentation; and(5) Equitable Relief. 10. Defendant alleges that Plaintiff failed to comply with servicing regulations and allegedly did not engage in loss mitigation efforts and/or wrongfully denied Defendant's modification application. See generally Counterclaims at¶¶ 87-94, 117. 11. Specifically, Defendant claims that Plaintiff did not provide her a notice of counseling or a face-to-face meeting within the requisite time frame following the Default. Id. at ¶ 88. 12. Defendant also alleges Plaintiff failed to serve proper notices prior to acceleration or foreclosure following Defendant's Default. Id. at¶¶98-99. 13. Concerning Plaintiff's loss mitigation efforts, Defendant argues that Plaintiff wrongfully denied Defendant's modification application. Specifically, Defendant alleges that Plaintiff failed to respond to Defendant, failed to gather or lost documentation submitted in connection with the modification application, and miscalculated Defendant's eligibility. Id.at¶ 117 (a)-(g). 14. Defendant alleges that as a result, Plaintiff failed to properly process Defendant's application and, thereafter, provided misleading, false, or deceptive reasons for denial of the loan modification in violation of Pennsylvania law. Id. at¶¶ 117(h)-(i), 118. - 3 - 15. Defendant also alleges that her loan was securitized, that the securities were sold to investors, and that Plaintiff has concealed the "entire chain of title of the note and the entire chain of title of the mortgage." See New Matter at IT 30-32. 16. Defendant further alleges that because the Mortgage was "securitized without [her] knowledge or consent, the mortgage was rendered unenforceable." Counterclaims at¶ 85. 17. Plaintiff files these Preliminary Objections to the Counterclaims pursuant to Pennsylvania Rule of Civil Procedure 1148, which restricts the assertion of counterclaims in mortgage foreclosures to those "which arise[] from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff's cause of action arose." 18. Defendant improperly attempts to bring Counterclaims for relief based on alleged events that occurred long after the origination of the Mortgage, which should, therefore, be dismissed. Pa. R. Civ. P. 1028(a)(4). 19. Specifically, Defendant's Counterclaims for Declaratory and Injunctive Relief and Equitable Relief seek to "restrain Plaintiff from further unlawful conduct," which relates to Plaintiff's alleged conduct in prosecuting this foreclosure following Defendant's Default, not the origination of the Mortgage. Further, Defendant's Counterclaims for Breach of Contract, Fraudulent Misrepresentation, violations of the UTPCPL, and Equitable Relief concern the alleged securitization of the Mortgage, which, again, is unrelated to the origination of the Mortgage. 20. Plaintiff also files its Preliminary Objections to the Counterclaims pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(2) because Defendant's Counterclaims fail to conform to the rules of court insofar as they seek in personam money damages, which are not permitted in an in rem action for mortgage foreclosure. - 4 - a 21. Specifically, Defendant's Counterclaims for Declaratory and Injunctive Relief, Violations of the UTPCPL, Breach of Contract, and Fraudulent Misrepresentation seek monetary damages. See Counterclaims at"Wherefore" clauses following¶T 112, 120, 123 and 130. Because these claims seek money damages, Plaintiff's Preliminary Objections should be sustained under Pa. R. Civ. P. 1028(a)(2). 22. Further, Defendant's Counterclaims are deficient because each of Defendant's Counterclaims is time-barred on its face. Although the statute of limitations is to be pled as new matter, it may be raised in Preliminary Objections where "the defense is clear on the face of the pleadings[.]" Petsinger v. Pa. Dep't. of Labor & Indus., 988 A.2d 748, 758 (Pa. Commw. Ct. 2010) (citation omitted). 23. Defendant's Counterclaims for Declaratory and Injunctive Relief and Equitable Relief are subject to a four-year statute of limitation. 42 Pa.C.S.A. § 5525(8). 24. Defendant's UTPCPL claim is subject to a six-year statute of limitations. See, e.g., Gabriel v. O'Hara, 534,A.2d 488, 495 (Pa. Super. Ct. 1987). See also 42 Pa.C.S.A. § 5527(6) ("Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years."). 25. Defendant's Breach of Contract claim is subject to a four-year statute of limitations. See 42 Pa.C.S.A. § 5525. 26. Defendant's Fraudulent Misrepresentation claim is subject to a two-year statute of limitations. See 42 Pa.C.S.A. § 5524(7) (a claim "founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud," "must be commenced within two years"). - 5 - . y 27. Defendant's Mortgage was executed on April 24, 2003, but Defendant did not file her Counterclaims until September 12, 2014—over eleven years later and nearly twice the longest limitations period for any of her claims. 28. Accordingly, the causes of action set forth in the Counterclaim are time-barred on the face of the pleading and the Court should sustain Plaintiff's Preliminary Objections and dismiss with prejudice all causes of action asserted in the Counterclaim. 29. In addition, Defendant's Counterclaims based on the alleged securitization of Defendant's Mortgage are deficient and must be dismissed, as the law is clear that securitization neither gives rise to a cause of action nor prevents foreclosure. 30. Finally, Defendant's Counterclaim for Fraudulent Misrepresentation must be dismissed because this Counterclaim is not averred with particularity in accordance with Pa. R. Civ. P. 1019(b) and because it fails to attach the writing upon which it is based as required by Pa. R. Civ. P. 1019(i). 31. Accordingly, all of Defendant's Counterclaims (Counts IN) should be dismissed with prejudice. WHEREFORE, Plaintiff respectfully requests that this Honorable Court sustain its Preliminary Objections and dismiss each of Defendant's Counterclaims. - 6 - Respectfully submitted, --1�f1/4 A v I.Ile.V-0� RE D S TH&P Molly Q. Campbell Identification No. 311289 Three Logan Square Suite 3100 1717 Arch Street Philadelphia, PA 19103 (215) 851-8100 (215) 851-1420 (facsimile) mgcampbell@reedsmith.com Attorneys for Plaintiff Dated: October 15, 2014 - 7 - Molly Q. Campbell Attorneys for Plaintiff Attorney I.D. No. 311289 REED SMITH LLP Three Logan Square Suite 3100 1717 Arch Street Philadelphia, PA 19103 (215) 851-8100 (215) 851-1420 (facsimile) mgcampbell@reedsmith.com IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BANK OF AMERICA,N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP No. 2013-2582 Plaintiff V. MORTGAGE FORECLOSURE DEBORAH L. GRAHAM Defendant MEMORANDUM OF LAW IN SUPPORT OF THE PRELIMINARY OBJECTIONS OF PLAINTIFF BANK OF AMERICA,N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP, F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP. TO THE COUNTERCLAIMS OF DEFENDANT Plaintiff Bank of America,N.A,As Successor By Merger To BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing LP ("Plaintiff'), by and through its counsel, Reed Smith LLP, hereby files this Memorandum of Law in support of its Preliminary Objections to Defendant Deborah L. Graham's ("Defendant") Counterclaims. I. MATTER BEFORE THE COURT This case is a foreclosure action based on a failure to make payments due on a loan. On April 24, 2003, Defendant executed a Note in the amount of$93,941.00 ("Note") which is secured by a Mortgage ("Mortgage") against Defendant's real property located at 902 Allenview Drive, Mechanicsburg, Pennsylvania 17055-8604 (the "Property"). Defendant has filed an Answer with New Matter and Counterclaims ("Answer," "New Matter," "Counterclaims," respectively) in response to Plaintiff's Complaint. Plaintiff now files the instant Memorandum of Law in Support of the Preliminary Objections seeking to dismiss Defendant's Counterclaims for failure to conform to the laws and rules of court and for legal insufficiency. II. STATEMENT OF QUESTIONS INVOLVED 1. Should the Defendant's Counterclaims be dismissed because they do not relate to the origination of the Mortgage and are,therefore, prohibited by Pa. R. Civ. P. 1148? SUGGESTED ANSWER: YES. 2. Should Defendant's Counterclaims for Declaratory and Injunctive Relief, Violations of the Unfair Trade Practice Act, Breach of Contract, and Fraudulent Misrepresentation be dismissed because they seek in personam money damages, which are forbidden in this in rem foreclosure proceeding? SUGGESTED ANSWER: YES. 3. Should the Defendant's Counterclaims be dismissed because they are time-barred pursuant to the applicable statute of limitations? SUGGESTED ANSWER: YES. 4. Should Defendant's Counterclaims for Declaratory and Injunctive Relief(Count I), Violations of the Unfair Trade Practice Act(Count I1), Breach of Contract (Count III), Fraudulent Misrepresentation(Count IV), and Equitable Relief(V)be dismissed because - 2 - s securitization of a mortgage loan does not give rise to a cause of action? SUGGESTED ANSWER: YES. 5. Should Defendant's Counterclaims for Fraudulent Misrepresentation (Count IV) be dismissed because this Counterclaim is not averred with particularity in accordance with Pa. R, Civ. P. 1019(b)? SUGGESTED ANSWER: YES. 6. Should Defendant's Counterclaim for Breach of Contract(Count III) be dismissed because Defendant failed to attach the writing upon which it is based in violation of Rule 1019(i)? SUGGESTED ANSWER: YES. III.FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY On April 24, 2003, Defendant executed a Note in the amount of$93,941.00, which is secured by a Mortgage against Defendant's Property located at 902 Allenview Drive, Mechanicsburg, Pennsylvania 17055-8604. Copies of Defendant's Note and Mortgage are attached hereto as Exhibits A and B, respectively., Defendant made executed and delivered said Mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for SIB Mortgage Corporation("SIB"or"Lender"). See Defendant's Answer at 112; Ex. A. Thereafter, on April 23, 2012, the Mortgage was assigned to Plaintiff(the "Assignment"). A copy of the Assignment is attached hereto as Exhibit C. The Assignment was recorded on April 30, 2012 in Mortgage Book 1809, Page 2738 in the Cumberland County Office of the 1 "[T]he trial court[may]properly consider those documents[] which were attached to the defendants' preliminary objections"where the plaintiff averred the existence of such documents. Martin v. Commwealth, Dep't of Transp.,556 A.2d 969,971-72(Pa. Commw. Ct. 1989)(citations omitted). See also Babiarz v. Bell Atl.-Pa., Inc., No. 1863,2001 WL 1808554,at*14(Pa.Ct.Com. Pl.Nov.20,2001);New Matter at¶ 11 (alleging existence of mortgage and assignment);Defendant's Answer,New Matter and Counterclaims("Answer,""New Matter,"or "Counterclaims,"respectively)at 112(averring existence of Note and Mortgage). - 3 - Recorder. See Exhibit C. Defendant defaulted on her Mortgage by failing to make the December 1, 2012 payment and all payments thereafter(the"Default"). Comp. ¶ 6. On May 9, 2013, Plaintiff brought this Complaint in foreclosure against Defendant in light of Defendant's Default("Foreclosure Complaint"). A copy of the Foreclosure Complaint is attached hereto as Exhibit D. In response to the Foreclosure Complaint, Defendant filed her Answer,New Matter and Counterclaims on September 12, 2014. Defendant purports to assert five Counterclaims against Plaintiff. (1) Declaratory and Injunctive Relief; (2) Violations of the Unfair Trade Practices ("UTPCPL") and Consumer Protection Law; (3) Breach of Contract; (4) Fraudulent Misrepresentation; and (5) Equitable Relief. Defendant alleges that Plaintiff failed to engage in loss mitigation efforts and/or wrongfully denied Defendant's modification application. See generally Counterclaims, at¶¶ 88- 94, 117. Specifically, Defendant claims that Plaintiff did not provide her a notice of counseling or a face-to-face meeting within the requisite time frame following the Default. Id. at¶ 88. Defendant also alleges Plaintiff failed to serve proper notices prior to acceleration or foreclosure following Defendant's Default. Id. at¶T 98-99. Concerning Plaintiff's loss mitigation efforts, Defendant argues that Plaintiff wrongfully denied Defendant's modification application because Plaintiff failed to respond to Defendant, failed to gather or lost documentation submitted in connection with the modification application, and miscalculated Defendant's eligibility. Id. at¶ 117 (a)-(g). Defendant alleges that as a result of the alleged conduct, Plaintiff failed to properly process Defendant's application and, thereafter, provided misleading, false, or deceptive reasons for denial of the loan modification in violation of Pennsylvania law. Id. at¶¶ 117(h)-(i), 118. - 4 - Defendant further alleges that her loan was securitized, that the securities were sold to investors, and that Plaintiff has concealed the "entire chain of title of the note and the entire chain of title of the mortgage." See New Matter at¶¶30-32. Defendant alleges that the "securitization of Defendant's mortgage note intended for sale on public securities markets by SIB and participation by Plaintiff in this scheme is a deceptive and misleading devise, scheme, and artifice to defraud Defendant." Counterclaims at¶T 109, 1160), 130, 132. IV. ARGUMENT A. Standards Governing Plaintiffs Preliminary Objections Plaintiff brings these Preliminary Objections under Pa. R. Civ. P. 1028(a)(2) and (4) and 1148. Under Pa. R. Civ. P. 1028(a)(2), the Court may strike a pleading for failure to "conform to law or rule of court." See Pa. R. Civ. P. 1028(a)(2); Laser Eye Inst., Inc. v. Schulman, 2002 Phila. Ct. Com. Pl. LEXIS 83, at *1-2 (Feb. 6, 2002). As explained more fully below, the laws and Rules of this Court do not permit counterclaims in a mortgage foreclosure action that seek money damages or that are unrelated to the creation of the mortgage. See N.Y. Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 953 (Pa. Super. Ct. 1987); Mellon Bank, N.A. v. Joseph, 406 A.2d 1055, 1060 (Pa. Super. Ct. 1979). Further, in accordance with Pa. R. Civ. P. 1028(a)(4), the trial court may dismiss an action for failure to state a claim upon which relief can be granted when "it is clear from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish a right to relief." Pa. AFL-CIO v. Commonwealth, 757 A.2d 917, 920 (Pa. 2000); Goodman v. PPG Indus., Inc., 849 A.2d 1239, 1243 (Pa. Super. Ct. 2004) (dismissal is appropriate when it"appear[s] with certainty that the law would not permit recovery by the plaintiff upon the facts averred"). Under Pa. R. Civ. P. 1028(a)(4), in ruling on an objection in - 5 - the nature of a demurrer, "the court must consider all of the well-pleaded material facts set forth in the petition and all reasonable inferences drawn from those facts." Allegheny County Sportsmen's League v. Rendell, 860 A.2d 10, 14 (Pa. 2004). The Court, however, "need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion." Myers v. Ridge, 712 A.2d 791, 794 (Pa. Commw. Ct. 1998); S. Union Twp. v. Commonwealth, 839 A.2d 1179, 1185 n.8 (Pa. Commw. Ct. 2003). The court should sustain an objection in the nature of a demurrer"where the complaint, on its face, fails to establish a legal right to relief." Mazzagatti v. Everingham, 516 A.2d 672, 675 (Pa. 1986). Finally, Pa. R. Civ. P. 1148 allows only a counterclaim in a mortgage foreclosure "which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff's cause of action arose." This Rule limits counterclaims to causes of action that are "part of, or incident to, the creation of the mortgage itself." Mellon Bank, N.A., 406 A.2d at 1060. Counterclaims in a mortgage foreclosure action that do not pertain to the creation of the mortgage must be dismissed pursuant to Rule 1148. Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. Ct. 1998), appeal denied, 734 A.2d 861 (Pa. 1999). B. All Of The Counterclaims Are Barred By Rule 1148 Because They Do Not Relate To The OriOnation Of The Mortgage. Defendant's Counterclaims are completely barred by Pa. R. Civ. P. 1148. Rule 1148 allows only a counterclaim"which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff's cause of action arose." This Rule limits counterclaims in a mortgage foreclosure action to causes of action that are "part of, or incident to,the creation of the mortgage itself." Mellon Bank, N.A., 406 A.2d at 1060. The Pennsylvania Superior Court has repeatedly held that counterclaims in a mortgage foreclosure action that do not pertain to the creation of the mortgage must be dismissed. Cunningham, 714 A.2d at 1057; - 6 - r Chrysler First Bus. Credit Corp. v. Gourniak, 601 A.2d 338, 341-42 (Pa. Super. Ct. 1992); Overly v. Kass, 554 A.2d 970, 974 (Pa. Super. Ct. 1989). Here, Defendant's Counterclaims all pertain to alleged events that occurred long after the origination of the Mortgage and should, therefore, be dismissed. As noted, Defendant executed the Mortgage loan transaction documents on April 24, 2003. See Exhibits A and B. Defendant's Counterclaims for Declaratory and Injunctive Relief(Count I) and Equitable Relief(Count V)— which seek to "restrain Plaintiff from further unlawful conduct" and request relief from the Court —are unrelated to the origination and creation of the Mortgage, and should be dismissed on that ground. Defendant is specifically seeking relief from the foreclosure, which relates to Defendant's Default under the Mortgage, not its origination. Wainright v. Bank ofAm., Nat. Assoc., 3:10-CV-01637-ARC, 2010 WL 3749264, *3 (M.D. Pa. Sept. 21, 2010) ("Plaintiffs could not assert their claims against the Defendants in the state foreclosure action, since their claims stem from Defendants behavior in the foreclosure process, rather than at the creation of the mortgage.") (emphasis in original). Further, any alleged "right" Defendant asserts that Plaintiff is denying her, does not stem from the creation of the Mortgage; rather, Defendant alleges the Pooling and Servicing agreement controls. Counterclaim¶ 108. Likewise, Defendant's Counterclaims under the UTPCPL and for Breach of Contract and Fraudulent Misrepresentation relate to the alleged securitization of the Mortgage, which, again, is unrelated to the origination of the mortgage cannot be the basis for a counterclaim in a mortgage foreclosure action. See Beneficial Consumer Disc. Co. v. Hoffman, 79 Pa. D. & CAth 496, 503-04 (Pa. Com. Pl. Ct. 2006) (Rule 1148 barred defendant's counterclaims for, inter alia, breach of contract, fraudulent representation, and violation of the UTPCPL where they arose or occurred after the creation of the mortgage and were unrelated to the actual creation of the - 7 - � t security interest). Further, Defendant's argument concerning Plaintiff's failure to comply with Housing and Urban Development("HUD") servicing requirements does not relate to the Mortgage's origination. In fact, Defendant specifically claims that following the Default, Plaintiff failed to follow special servicing requirements required by HUD. Counterclaims at¶¶ 87-100. This is clearly unrelated to the origination, as it concerns Defendant's subsequent Default. Mellon Bank, 406 A.2d at 1060 n.6 ("the counterclaims appellant seeks to assert are remedial; they arose once the mortgage was in default, but were not part of, or incident to, the creation of the mortgage itself"). Finally, Defendant allegations that Plaintiff did not engage in loss mitigation efforts and/or wrongfully denied Defendant's modification application cannot possibly relate to the creation of the Mortgage. See, e.g., Bank ofAm., N.A. v. Howard, 2014 WL 1335586, *3 (Pa. Com. Pl. Ct. Feb. 28, 2014) (affirming dismissal of counterclaims and finding that"[a]ny claim regarding a loan modification did not and could not arise incident to the creation of the mortgage"). Thus, each of these Counterclaims arose, if ever, well after and from events unrelated to the creation of the Mortgage. Accordingly, Plaintiff's Preliminary Objections should be sustained, and the Counterclaims should be dismissed. C. Counterclaims Seeking Money Damages Are Forbidden In Foreclosure Actions. A defendant in a foreclosure case cannot file a counterclaim seeking to enforce a personal liability because the action is an in rem proceeding. Since Defendant's Counterclaims impermissibly seek to do just that, the Court should sustain Plaintiff's Preliminary Objections pursuant to Pa. R. Civ. P. 1028(a)(2) and dismiss the Counterclaims in their entirety. An action in mortgage foreclosure is an in rem proceeding, the purpose of which is to secure a judicial sale of the mortgaged property. Pa. R. Civ. P. 1141; Green Tree Consumer - 8 - r Discount Co. v. Newton, 909 A.2d 811 (Pa. Super. Ct. 2006); Union Nat'l Bank of Little Rock v. Cobbs, 567 A.2d 719 (Pa. Super. Ct. 1989) (citing Fleet Real Estate Funding Corp. v. Smith, 530 A.2d 919 (Pa. Super. Ct. 1987)). Thus, Rule 1141 clearly states that a foreclosure action"shall not include an action to enforce a personal liability." Pa. R. Civ. P. 1141(a) (emphasis added). Against this backdrop, the Superior Court has recognized that a mortgage foreclosure action, as an action in rem, does not allow either party to pursue an action in personam, such as an action for damages. See N.Y. Guardian Mortg. Corp. v. Dietzel, 524 A.2d 951, 953 (Pa. Super. Ct. 1987) (TILA counterclaim was incompatible with the foreclosure proceeding because the TILA claim was in personam in nature, whereas the foreclosure action was strictly in rem); see also Rocco v. J.P. Morgan Chase Bank, 255 Fed. App'x. 638, 643 (3d Cir. 2007) ("Claims for money damages, including recoupment claims, on the other hand, cannot be brought in a foreclosure action."); Birchall v. Countrywide Home Loans, Inc., No. 08-2447, 2009 WL 3822201, at *6 (E.D. Pa. Nov. 12, 2009) ("a mortgage foreclosure action, as an action in rem, does not allow either party to pursue an action in personam, such as an action for damages."); Wells Fargo Bank v. Cruz,No. 2844, 2010 Phila. Ct. Com. Pl. LEXIS 22, at *3 (Feb. 3, 2010) ("[I]t is impermissible to assert a claim for monetary damages in a mortgage foreclosure action."). Defendant's Counterclaims I, II, III and IV each request in personam relief from Plaintiff. See Counterclaim at"Wherefore" clauses following¶¶ 112, 120, 123, 130. Specifically, Defendant seeks civil penalties with regard to Defendant's claims for equitable relief; treble damages with regard to Defendant's UTPCPL claim; "an amount not yet quantified" and such amounts to be proven at trial concerning Defendant's breach of contract; and"return of any money,"treble damages, and"actual damages"regarding Defendant's fraudulent - 9 - r misrepresentation Counterclaim. Given the foregoing authorities, the causes of action in the Counterclaim are not properly asserted in this foreclosure action. Simply stated, the law and the rules do not permit counterclaims in a mortgage foreclosure action that seek money damages. Dietzel, 524 A.2d at 953; Pa. R. Civ. P. 1141(a). Because Defendant's Counterclaims I, Il, 111 and IV fail to comply with the law and rules of court and are legally insufficient on their face, these Counts should be dismissed in their entirety, pursuant to Pa. R. Civ. P. 1028(a)(2). D. All Of Plaintiffs Claims Are Time-barred On Their Face And Should Be Dismissed. Even if the Counterclaims arose out of the creation of the Mortgage, which they did not, Defendant executed the Mortgage over 11 years prior to filing this action. Thus, Defendant's Counterclaims are time-barred under even the longest of the applicable limitations periods. Although the statute of limitations is to be pled as new matter, it may be raised in preliminary objections where "the defense is clear on the face of the pleadings[.]" Petsinger v. Pa. Dep't. of Labor & Indus., 988 A.2d 748, 758 (Pa. Commw. Ct. 2010) (citation omitted). Here, each of Defendant's Counterclaims is barred by the applicable statute of limitations. Defendant's Declaratory and Injunctive Relief and Equitable Relief claims are subject to the four-year statute of limitations of 42 Pa.C.S.A. 5225(8). The UTPCPL claim is subject to a six-year statute of limitations. See, e.g., Gabriel v. O'Hara, 534 A.2d 488, 495 (Pa. Super. Ct. 1987). See also 42 Pa.C.S.A. § 5527(6) ("Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years."). Defendant's Breach of Contract claim is subject to a four-year statute of limitations,see 42 Pa.C.S.A § 5525, and the Fraudulent Misrepresentation claim is subject to a two-year statute of - 10 - limitations. See 42 Pa.C.S.A. § 5524(7) (a claim "founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud," "must be commenced within two years"). As noted, Defendant's Mortgage was executed on April 24, 2003. Any Counterclaims related to the origination of the Mortgage would have accrued on that date. However, Defendant did not file her Counterclaims until September 12, 2014—over eleven years later and nearly twice the longest limitations period for any of her claims. Accordingly, the causes of action set forth in the Counterclaim are time-barred on the face of the pleading and the Court should sustain Plaintiff's Preliminary Objections and dismiss with prejudice all causes of action asserted in the Counterclaim. E. All Of The Counterclaims Fail Because Plaintiffs "Split-Note" And Securitization Allegations Cannot Support These Claims As A Matter Of Law. Each of Defendant's Counterclaims incorporates by reference the allegations contained in Defendant's New Matter and the General Allegations contained in Paragraphs 75 — 100 of the Counterclaims. See New Matter¶¶ 11- 43; General Allegations¶¶75-100; see also¶¶ 101, 113, 121, 124, 131. Essentially, Defendant's "split-note" and/or"securitization" allegations aver that the Note named SIB as the Lender, but the"Security Agreement"was provided to MERS solely as nominee for the Lender. New Matter¶¶ 12, 19. Defendant further alleges that Note was allocated to a new corporation and pledged to owners of asset backed securities, the certificates of which were then sold to investors. See New Matter¶¶ 19-31. Defendant alleges that the - 11 - separation of the Note from the deed of trust has resulted in Plaintiff's lack of standing to bring its Foreclosure Complaint against Defendant. Id. ¶42.2 Courts from around the country have routinely rejected Defendant's exact argument that that securitization of a note "splits" it from the mortgage and renders both invalid. As one court has explained: The rule is well-settled that . . . the mortgagee has a lien on the land to secure the debt. It has never been necessary that the mortgage should be given directly to the beneficiaries. The security is always made in trust to secure obligations and the trust and the beneficial interest need not be in the same hands . . . . The choice of a mortgagee is a matter of convenience. Residential Funding Co., L.L.C. v. Saurman, 490 Mich. 909, 909-10, 805 N.W.2d 183, 183-84 (Mich. 2011). See also, In re Walker, 466 B.R. 271, 285 (Bankr. E.D. Pa. 2012) ("Whatever the context, it appears that a judicial consensus has developed holding that a borrower lacks standing to [ ] challenge the validity of a mortgage securitization . . . ."); Wiley v. Deutsche Bank Nat'l Trust Co., No. 1251039, 2013 WL 4779686, at *I (5th Cir. Sept. 6, 2013) (rejecting "the murky legal theory, and mortgage defaulters' claim du jour, known as the `split- the-note' theory"); Brazell v. Waite, 525 Fed. Appx. 878, 884 (10th Cir. June 4, 2013) (rejecting as "meritless" "the split note theory [ ] that because the promissory note and the trust deed are not held by the same party, the trust deed is a nullity and of no further force and effect.") (internal quotations omitted); Yuille v. Am. Home Mortgage Servs., Inc.,No. 10-2564, 2012 U.S. App. LEXIS 10797, at *7-8 (6th Cir. May 29, 2012) (rejecting argument that a mortgage that "separates the promissory note from the mortgage and allows the lender to trade the Note separately from the mortgage is unenforceable") (internal quotations omitted);PHH Mortgage 2 Paragraph 32 states,in part:"In order for this Plaintiff to maintain legal standing in connection with the subject loan transaction they are required to show the entire chain of title of the note and the entire chain of title of the mortgage." - 12 - Corp. v. Garner, 2013 WL 2459868, at *6 (N.J. Super. Ct. App. Div. June 10, 2013) (rejecting "split the note theory"that because the mortgagee and holder of the note were different entities "the note and the mortgage were separated, such that no one had the authority to enforce the obligation at the time the foreclosure complaint was filed"); Marroceo v. Chase Bank, N.A.,No. 2:12-cv-10605, 2012 WL 3061031, at *3 (E.D. Mich. July 26, 2012)("The Court concludes that the validity of the mortgage was unaffected by the separation of the note and mortgage."). In short, Defendant's "split-note" and securitization theories cannot, as a matter of law, support any of Defendant's claims for relief. Accordingly, since each of Defendant's claims rely on these allegations, all of the Counterclaims fails as a matter of law. F. Defendant's Counterclaims for Fraudulent Misrepresentation and Violations of the UTPCPL Fail Because They are Not Averred With Particularity,As Required By Rule 1019(b). Defendant's Fraudulent Misrepresentation Counterclaim is insufficiently specific and otherwise fails to state a claim upon which relief can be granted. The Court should sustain Plaintiff's Preliminary Objections on this ground. Under the Pennsylvania Rules of Civil Procedure, "[a]verments of fraud or mistake shall be averred with particularity." Pa. R. Civ. P. 1019(b). A plaintiff bringing an action based in fraud must "alleg[e] with specificity the acts that he claims are fraudulent." Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 526 Pa. 541, 553, 587 A.2d 1346, 1352 (1991) (emphasis in original). Failure to meet this bare minimum renders a fraud claim insufficient as a matter of law. See Youndt v. First Nat'l Bank of Port Allegany, 868 A.2d 539, 545 (Pa. Super. Ct. 2005). This heightened pleading standard applies not only to claims for fraudulent misrepresentation, but also to claims for fraudulent concealment and for violations of Pennsylvania's consumer fraud statute, the UTPCPL. See id. at 544-45 (applying Pa. R. Civ. P. 1019(b) to claim for fraudulent misrepresentation); Lindstrom v. Pennswood Village, 612 A.2d - 13 - 1048, 1052 (Pa. Super. Ct. 1992) (applying Pa. R. Civ. P. 1019(b) to claim for violation of the UTPCPL); Muhammad, 526 Pa. at 554, 587 A.2d at 1352 (applying Pa. R. Civ. P. 1019(b) to claim for fraudulent concealment). Thus, under Pa. R. Civ. P. 1028(a)(3), the Court may dismiss a pleading for insufficient specificity. "The purpose of the pleadings is to place the defendants on notice of the claims upon which they will have to defend." Carlson v. Cmty. Ambulance Servs., Inc., 824 A.2d 1228, 1232 (Pa. Super. Ct. 2003) (quoting Yacoub v. Lehigh Valley Med., 805 A.2d 579, 588 (Pa. Super. Ct. 2002)). "A complaint must give the defendants fair notice of the plaintiffs claims and a summary of the material facts that support those claims." Id. (quoting Yacoub, 805 A.2d at 588). A complaint is only sufficiently specific if it provides the defendant "with enough facts to enable it to frame a proper answer and prepare a defense." Boyd v. Rockwood Area Sch. Dist., 907 A.2d 1157, 1168 n.19 (Pa. Commw. Ct. 2006) (quoting Commonwealth ex rel. Milk Mktg. Bd. v. Sunnybrook Dairies Inc., 370 A.2d 765, 768 (Pa. Commw. 1977)). Further, in accordance with Pa. R. Civ. P. 1028(a)(4), the Court may dismiss a pleading for"legal insufficiency." See Pa. R. Civ. P. 1028(a)(4). Where it"appear[s] with certainty that the law would not permit recovery by the plaintiff upon the facts averred,"preliminary objections challenging the legal sufficiency of a pleading should be sustained. Goodman v. PPG Indus., Inc., 849 A.2d 1239, 1243 (Pa. Super. Ct. 2004). In ruling on a demurrer under Pa. R. Civ. P. 1028(a)(4), "the court must consider all of the well-pleaded material facts set forth in the petition and all reasonable inferences drawn from those facts." Allegheny County Sportsmen's League v. Rendell, 580 Pa. 149, 154, 860 A.2d 10, 14 (2004). The Court, however, "need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, - 14 - or expressions of opinion." Myers v. Ridge, 712 A.2d 791, 794 (Pa. Commw. Ct. 1998); S. Union Twp. v. Commonwealth, 839 A.2d 1179, 1185 n.8 (Pa. Commw. Ct. 2003). Here, Defendant's Fraudulent Misrepresentation claim is so devoid of specific facts that Plaintiff is denied a reasonable opportunity to respond. For example, Defendant avers that "Plaintiffs predecessors knowingly and intentionally concealed material information from Defendant which is required...to be disclosed...." See Counterclaims at¶ 125. Defendant fails to identify Plaintiff's putative "predecessors," fails to identify the subject matter of any "material information,"the location or the date of the alleged misrepresentations. Further, with regard to the UTPCPL Counterclaim, Defendant has failed to point to any misrepresentations made by Plaintiff or any interaction whatsoever with representatives of Plaintiff, let alone do so with any particularity. Therefore, Plaintiff cannot establish liability against Plaintiff under the UTPCPL.3 These conclusory allegations are not sufficient under the Pennsylvania pleading rules requiring enough facts to enable the responding party to frame a proper answer and prepare a defense. Accordingly, Defendant's claim for Fraudulent Misrepresentation should be dismissed. G. Defendant's Counterclaim for Breach of Contract Should be Dismissed Because She Failed to Attach The Contract As Required By Rule 1019(1). Defendant's Breach of Contract Counterclaim is deficient as a matter of law because it fails to attach the writing to which it relates as required by Pa. R. Civ. P. 1019(i). Commonwealth Fin. Sys. v. Hartzell,No. 10390, 17 Pa. D. & C. 5th 176, 179-80 (Pa. Com. Pl. Ct. Oct. 19, 2010) ("Pa.R.C.P. No. 1019(1) states, `when any claim or defense is based upon a writing,the pleader shall attach a copy of the writing, or the material part thereof, but if the 3 "Additionally, there can be no assignee liability under the UTPCPL." Perkins v. Beltway Capital, LLC,No. 3771, 2013 WL 8697955 (Pa. Com. Pl. Ct. Apr. 16, 2013) (citing WM Specialty Mortgage v. Shuttleworth, 82 Pa.D. & CAth 129 (2007) (dismissing homeowner's counterclaim for violations of the UTPCPL in a foreclosure action because the alleged violations were committed by the original lender not the foreclosing assignee)). - 15 - writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing."'); Citibank(S. Dakota) N.A. v. Strunk, 7285 CV 2009, 2010 WL 2914573 (Pa. Com. Pl. Ct. May 3, 20 10) ("Pa.R.C.P. 1019(i) provides that a copy must be attached to the complaint."). As Defendant failed to attach any writing or material part thereof, Defendant's Claim of Breach of Contract fails under Rule 1019(i). V. RELIEF For all of the foregoing reasons, Plaintiff respectfully requests that this Court sustain its Preliminary Objections and dismiss Defendant's Counterclaim with prejudice in its entirety. Respectfully submitted, --1 z 6�:� RLYED ITH LIP Molly Q. Campbell Identification No. 311289 Three Logan Square Suite 3100 1717 Arch Street Philadelphia, PA 19103 (215) 851-8100 (215) 851-1420 (facsimile) mgcampbellgreedsmith.com Attorneys for Plaintiff Dated: October 15, 2014 - 16 - CERTIFICATE OF SERVICE I hereby certify that on this 15`h day of October, 2014, 1 caused a copy of the foregoing to be served by first-class and electronic mail upon the following: Stephen K. Portko, Esquire BRATIC & PORTKO 101 South U.S. Route 15 Dillsburg, PA 17019 braticportko a,aol.com Attorney for Defendant M y Q. Aampbeff 10/13/2014 4:16 PM ORIGINAL 1 - a z� �- �,�— t �d c::> � t � � NOTE FHA Case No. Multistate 441-7154858-703 AP# SIB1000237498 April 24, 2003 [Date] Dw — M ALLENVIEW DRIVE,MECHANICSBURG,PA 17055 (\ [Property Address] 1.PARTIES "Borrower" means each person signing at the end of this Note, and the person's successors and assigns. "Lender" means SIB MORTGAGE CORP. , A NEW JERSEY CORPORATION nand its successors and assigns. U 2.BORROWER'S PROMISE TO PAY;INTEREST j 'In return for a loan received from Lender,Borrower promises to pay the principal sum of Ninety Three Thousand Nine Hundred Forty One and no/100 Dollars(U.S. $ 93,941.00 ),plus interest, to the order of Lender. Interest will be charged on unpaid principal, from the date of disbursement of the loan proceeds by Lender,at the rate of Six and One / Quarter pe_tcent( 6.2500 %)per year until the full amount of principal has been paid. -3. PROMISE TO PAY SECURED Borrower's promise to pay is secured by a mortgage, deed of trust or similar security instrument that is dated the same date as this Note and called the "Security Instrument." The Security Instrument protects the Lender from losses which might result if Borrower defaults under this Note. 4.MANNER OF PAYMENT (A) Time Borrower shall make a payment of principal and interest to Lender on the first day of each month beginning on June 1 , 2003 . Any principal and interest remaining on the first day of May , 2033 , will be due on that date, which is called the "Maturity Date." (B) Place Payment shall be made at 1250 ROUTE 28, BRANCHBURG, NJ 08876 or at such place as Lender may designate in writing by notice to Borrower. (C) Amount Each monthly payment of principal and interest will be in the amount of U.S. $578.42 This amount will be part of a larger monthly payment required by the Security Instrument, that shall be applied to principal, interest and other items in the order described in the Security Instrument. (D) Allonge to this Note for payment adjustments If an allonge providing for payment adjustments is executed by Borrower together with this Note, the covenants of the allonge shall be incorporated into and shall amend and supplement the covenants of this Note as if the allonge were a part of this Note. [Check applicable box] Graduated Payment AIlonge ElGrowing Equity Allonge ElOther[specify] S.BORRO'WER'S RIGHT TO PREPAY Borrower has the right to pay the debt evidenced by this Note, in whole or in part,without charge or penalty, on the fust day of any month. Lender shall accept prepayment on other days provided that Borrower pays interest on the amount prepaid for the remainder of the month to the extent required by Lender and permitted by regulations of the Secretary. If Borrower makes a partial prepayment, there will be no changes in the due date or in the amount of the monthly payment unless Lender agrees in writing to those changes. IIIA Multistate IYxed Rate Note-10/95 I IIIIIII IIIII"■�IIIIII Ilii III)IIII t� -1R t02101 1 VMPMORTGAGE FORMS-(8001827-7291 Page 1 W 2 MW 10/02 Initials: 1111111111111111111111111111111IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII 1111111111111111 610 02909 0022 N 001 001 i 6.BORROWER'S FAILURE TO PAY (A) Late Charge for Overdue Payments If Lender has not received the full monthly payment required by the Security Instrument, as described in Paragraph 4(C) of this Note, by the end of fifteen calendar days after the payment is due, Lender may collect a late charge in the amount of FOUL" percent( 4.0000 %) of the overdue amount of each payment. (B) Default If Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in the case of payment defaults, require immediate payment in full of the principal balance remaining due and aII accrued interest. Lender may choose not to exercise this option without waiving its rights in the event of any subsequent default. In many circumstances regulations issued by the Secretary will limit Lender's rights to require immediate payment in full in the case of payment defaults. This Note does not authorize acceleration when not permitted by HUD regulations. As used in this Note, "Secretary"means the Secretary of Housing and Urban Development or his or her designee. (C) Payment of Costs and Expenses If Lender has required immediate payment in full, as described above, Lender may require Borrower to pay costs and expenses including reasonable and customary attorneys' fees for enforcing this Note to the extent not prohibited by applicable law. Such fees and costs shall bear interest from the date of disbursement at the same rate as the principal of this Note. 7. WAIVERS Borrower and any other person who has obligations under this Note waive the rights of presentment and notice of j dishonor. "Presentment" means the right to require Lender to demand payment of amounts due. "Notice of dishonor" means the right to require Lender to give notice to other persons that amounts due have not been paid. 8. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to Borrower under this Note will be given by delivering it or by mailing it by first class mail to Borrower at the property address above or at a different address if Borrower has given Lender a notice of Borrower's different address. Any notice that must be given to Lender under this Note will be given by first class mail to Lender at the address stated in Paragraph 4(B) or at a different address if Borrower is given a notice of that different address. 9. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. Lender may enforce its rights under this Note against each person individually or against all signatories together. Any one person signing this Note may be required to pay all of the amounts owed under this Note. BY SSIGNINNG BELOW,Borrower accepts and agrees to the terms and covenants contained in this Note. (Seal) (Seal) DEBORAH L GRAHAM -Borrower -Borrower (Seal) (Seal) -Borrower -Borrower (Seal) (Seal) -Borrower -Borrower (Seal) (Seal) -Borrower -Borrower ®-1 R t021 01 Poge 2 of Pay to the Order of Pay to the Order of Countrywide Home Loans Servicing LP Without recourse without recourse Countrywide Home Loans Inc. Countrywide Home Loans Servicing LP's Natne BRIEL DURAN.ASST.SEC. NameQ L DURAN,ASST,S T -Y TO THE ORDER OF CO E HOME LOANS.ING. SIB MO c�A_LL E CORP. BY: gq Assis ntretary C�,��►a SUBORDINATION AGREEMENT THIS SUBORDINATION AGREEMENT entered into between Household Realty Corporation, herein known as 'SUBORDINATING LENDER', and S.I.B. MORTGAGE CORP., herein known as 'NEW LENDER'. Subordinating Lender is the holder of a Mortgage from Deborah L. Graham, , herein known as 'BORROWER', which was recorded on 6/26/2002, at Liber#1763 and Folio #629, Cumberland Recorders office, State of Pennsylvania, in the original amount of $10,000.00. Borrower has secured a loan from New Lender in the amount of$94,067 and has requested that Subordinating Lender subordinate Subordinating Lender's Mortgage to the new lien of the New Lender. THEREFORE, Subordinating Lender, for a valuable consideration, the receipt of which is hereby acknowled ed, does hereby subordinate its Mortgage to the mortgage lien of New Lender, dated H-Pn 1 2L] , 20-0a, and recorded in Official Records Book/Libor/Indexes 21 io I*4 Page/Folio Cumberland, State of Pennsylvania. —1 t.Lt Z r--1 kiss c, _• tS��'�? wHousehold Realty Corporation h A. LL U CC 7c 'ij'-,i fi't �y4•: .' -„ [:i�'f::: 1..2 BY: Its: Witness Z itness AnalW. - i. Print Witness Name Print Witness Name r 000614746 GRAHAM DL4 STATE OF � �ZnoL-S IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIflllllllllllll �!'�-" " IIIIIIIIIIIIIIIIIIIIIIIII . COUNTY OF 610 029094502 SUB 001 001 The foregoing SubcIrdination Agreement wq,9 acknowledged before me on this / ^ da of �”[/ 0 , b Hous hol Realt Corporation, by �- Y z ?, Y P -/` its V — /G��SP�6� , on its behalf. r 1 Notary Public oinclal seal ,�-�// Terrence J Hardy ,y. C- �_ ! �J - Nppry puppc Stale of Illinois ` , •• My Co�fubn F-xPk�03!05/o7 My Commission Expires BOOK 703 PAGE'-1)805 Return To: ... Mortgage Corp., One Research Court, Suits 160, Rockville, MD 20850 ( V] EXHMIT A ALL THAT CERTAIN tract or parcel of land and premises,situate,lying and being in the Township of Upper Allen in the County of Cumberland and Commonwealth of Pennsylvania being known as Lot 4G part of Townhouse Plot No. 4 as shown on the final Subdivision Plan of Allenview, Stage II, Section B, Sheet 2,dated April 12, 1979 and recorded in Plan Book 36,Page 47, as follows,to wit: i BEGINNING at the southeast corner of Lot 4-17 and going along a line North 36 degrees 08 minutes West a distance of 90.46 feet to a point; thence turning right along a line north 53 degrees 52 minutes East a distance of 20.3 feet to a point; thence turning right along a line South 36 degrees 08 minutes East a distance of 89.93 feet to a point on the northern right of way line of Allenview Drive; thence turning:fight along said right of way line South 52 degrees 22 minutes 39 seconds West a distance of 20.31 feet to the point of beginning. 42-28-2423-242 I EXCEPTING THEREOUT AND THEREFROM(IF ANY)THE PREMISES AS MORE FULLY DESCRIBED IN THE FOLLOWING DEED: NONE PIT123-14288 : I Certify this to be recorded In Cumberland County PA v Recorder of Deeds BOOK 703 PAGE3806 f 10/13/2014 2:27 PM ,qj � DEEDS i-AND 000IJIY- G 3 Parcel Number: AP# SIB1000237498 LN# 1000237498 [Space Above This Lint For Recwdin Mul FHA Case No. Commonwealth of Pennsylvania MORTGAGE 441-7154858-703 MIN 1000273-1000237498-1 THIS MORTGAGE("Security Instrument")is given on April 24, 2003 The Mortgagor is DEBORAH L GRAHAM, UNMARRIED ("Borrower"). This Security Instrument is given to Mortgage Electronic Registration Systems, Inc. ("MERS"),(solely as nominee for Lender,as hereinafter defined,and Lender's successors and assigns),as mortgagee. MERS is organized and existing under the laws of Delaware,and has an address and telephone number of P.O.Box 2026,Flint,MI 48501-2026,tel.(888)679-MERS. SIB MORTGAGE CORP. , A NEW JERSEY CORPORATION ("Lender")is organized and existing under the laws of THE STATE OF NEW JERSEY and has an address of 1250 ROUTE 28, BRANCHBURG, NJ 08876 .Borrower owes Lender the principal sum of Ninety Three Thousand Nine Hundred Forty One and no/100 Dollars(U.S.$93.941.00 ). FHA Pennsylvania Mortpige with MERS-41% M.-4N(PA)Woe) Amended X02 Ppe 1 01 10 MW Ini1621 VMP MORTGAGEAGE FORMS-Ie001e27- 1 ,H1 BKI809PG2738 This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provides for monthly payments, with the full debt, if not paid earlier, due and payable on May 1, 2033 .This Security Instrument secures to Lender:(a)the repayment of the debt evidenced by the Note,with interest,and all renewals,extensions and modifications of the Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to protect the security of this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to MERS(solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, the following described property located in CUMBERLAND County,Pennsylvania: SEE ATTACHED LEGAL DESCRIPTION 94-D-' which has the address of-98—NQRThh ALL ENV IEW DRIVE [Saw] MECHANICSBURG [city),Pennsylvania 17055 [Zip Code) ("Property Address"); TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the"Property." Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument;but, if necessary to comply with law or custom, MERS, (as nominee for Lender and Lender's successors and assigns), has the right: to exercise any or all of those interests, including,but not limited to,the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing or canceling this Security Instrument. BORROWER COVENANTS that Borrower is lawfully seized of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands,subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. Initials:-��y'�/ ®AMPA)W206) page 2 or io m BK 1809PG2739 Borrower and Lender covenant and agree as follows: UNIFORM COVENANTS. 1.Payment of Principal,Interest and Late Charge. Borrower shall pay when due the principal of, and interest on,the debt evidenced by the Note and late charges due under the Note. 2. Monthly Payment of Taxes, Insurance and Other Charges. Borrower shall include in each monthly payment, together with the principal and interest as set forth in the Note and any late charges, a sum for (a) taxes and special assessments levied or to be levied against the Property, (b) leasehold payments or ground rents on the Property,and(c)premiums for insurance required under paragraph 4. In any year in which the Lender must pay a mortgage insurance premium to the Secretary of Housing and Urban Development ("Secretary"), or in any year in which such premium would have been required if Lender still held the Security Instrument,each monthly payment shall also include either: (i)a sum for the annual mortgage insurance premium to be paid by Lender to the Secretary,or(ii)a monthly charge instead of a mortgage insurance premium if this Security Instrument is held by the Secretary, in a reasonable amount to be determined by the Secretary. Except for the monthly charge by the Secretary,these items are called"Escrow Items"and the sums paid to Lender are called"Escrow Funds." Lender may, at any time, collect and hold amounts for Escrow Items in an aggregate amount not to exceed the maximum amount that may be required for Borrower's escrow account under the Real Estate Settlement Procedures Act of 1974, 12 U.S.C.Section 2601 et seq. and implementing regulations,24 CFR Part 3500, as they may be amended from time to time ("RESPA"), except that the cushion or reserve permitted by RESPA for unanticipated disbursements or disbursements before the Borrower's payments are available in the account may not be based on amounts due for the mortgage insurance premium. If the amounts held by Lender for Escrow Items exceed the amounts permitted to be held by RESPA, Lender shall account to Borrower for the excess funds as required by RESPA. If the amounts of funds held by Lender at any time are not sufficient to pay the Escrow Items when due, Lender may notify the Borrower and require Borrower to make up the shortage as permitted by RESPA. The Escrow Funds are pledged as additional security for all sums secured by this Security Instrument. If Borrower tenders to Lender the full payment of all such sutras,Borrower's account shall be credited with the balance remaining for all installment items (a), (b), and (c) and any mortgage insurance premium installment that Lender has not become obligated to pay to the Secretary,and Lender shall promptly refund any excess funds to Borrower. Immediately prior to a foreclosure sale of the Property or its acquisition by Lender,Borrower's account shall be credited with any balance remaining for all installments for items(a), (b),and(c). 3. Application of Payments. All payments under paragraphs I and 2 shall be applied by Lender as follows: First, to the mortgage insurance premium to be paid by Lender to the Secretary or to the monthly charge by the Secretary instead of the monthly mortgage insurance premium; Second, to any taxes, special assessments, leasehold payments or ground rents, and fire, flood and other hazard insurance premiums,as required; Third,to interest due under the Note; Fourth,to amortization of the principal of the Note;and Fifth,to late charges due under the Note. 4. Fire, Flood and Other Hazard Insurance. Borrower shall insure all improvements on the Property, whether now in existence or subsequently erected, against any hazards, casualties, and contingencies, including fire, for which Lender requires insurance. This insurance shall be maintained in -4N(PA)102061 Pepe 3 of 10 BK1809PG2740 the amounts and for the periods that Lender requires.Borrower shall also insure all improvements on the Property, whether now in existence or subsequently erected, against loss by floods to the extent required by the Secretary. All insurance shall be carried with companies approved by Lender. The insurance policies and any renewals shall be held by Lender and shall include loss payable clauses in favor of,and in a form acceptable to,Lender. In the event of loss,Borrower shall give Lender immediate notice by mail. Lender may make proof of loss if not made promptly by Borrower. Each insurance company concerned is hereby authorized and directed to make payment for such loss directly to Lender, instead of to Borrower and to Lender jointly. All or any part of the insurance proceeds may be applied by Lender, at its option, either (a) to the reduction of the indebtedness under the Note and this Security Instrument, first to any delinquent amounts applied in the order in paragraph 3,and then to prepayment of principal,or(b)to the restoration or repair of the damaged Property.Any application of the proceeds to the principal shall not extend or postpone the due date of the monthly payments which are referred to in paragraph 2, or change the amount of such payments. Any excess insurance proceeds over an amount required to pay all outstanding indebtedness under the Note and this Security Instrument shall be paid to the entity legally entitled thereto. In the event of foreclosure of this Security Instrument or other transfer of title to the Property that extinguishes the indebtedness,all right,title and interest of Borrower in and to insurance policies in force shall pass to the purchaser. 5. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application;Leaseholds. Borrower shall occupy,establish,and use the Property as Borrower's principal residence within sixty days after the execution of this Security Instrument(or within sixty days of a later sale or transfer of the Property) and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy,unless Lender determines that requirement will cause undue hardship for Borrower, or unless extenuating circumstances exist which are beyond Borrower's control. Borrower shall notify Lender of any extenuating circumstances. Borrower shall not commit waste or destroy,damage or substantially change the Property or allow the Property to deteriorate, reasonable wear and tear excepted.Lender may inspect the Property if the Property is vacant or abandoned or the loan is in default. Lender may take reasonable action to protect and preserve such vacant or abandoned Property. Borrower shall also be in default if Borrower, during the loan application process, gave materially false or inaccurate information or statements to Lender(or failed to provide Lender with any material information)in connection with the loan evidenced by the Note,including,but not limited to, representations concerning Borrower's occupancy of the Property as a principal residence. If this Security Instrument is on a leasehold,Borrower shall comply with the provisions of the lease.If Borrower acquires fee title to the Property,the leasehold and fee title shall not be merged unless Lender agrees to the merger in writing. 6. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of any part of the Property,or for conveyance in place of condemnation, are hereby assigned and shall be paid to Lender to the extent of the full amount of the indebtedness that remains unpaid under the Note and this Security Instrument. Lender shall apply such proceeds to the reduction of the indebtedness under the Note and this Security Instrument, first to any delinquent amounts applied in the order provided in paragraph 3,and then to prepayment of principal.Any application of the proceeds to the principal shall not extend or postpone the due date of the monthly payments, which are referred to in paragraph 2, or change the amount of such payments. Any excess proceeds over an amount required to pay all outstanding indebtedness under the Note and this Secu Instrument shall be paid to the entity legally entitled thereto. ir�nais: -4NIPA1(0206) Page a of io BK 1809PG274 I 7.Charges to Borrower and Protection of Lender's Rights in the Property.Borrower shall pay all governmental or municipal charges, fines and impositions that are not included in paragraph 2. Borrower shall pay these obligations on time directly to the entity which is owed the payment.If failure to pay would adversely affect Lender's interest in the Property,upon Lender's request Borrower shall promptly furnish to Lender receipts evidencing these payments. If Borrower fails to matte these payments or the payments required by paragraph 2, or fails to perform any other covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy,for condemnation or to enforce laws or regulations),then Lender may do and pay whatever is necessary to protect the value of the Property and Lender's rights in the Property, including payment of taxes,hazard insurance and other items mentioned in paragraph 2. Any amounts disbursed by Lender under this paragraph shall become an additional debt of Borrower and be secured by this Security Instrument. These amounts shall bear interest from the date of disbursement,at the Note rate,and at the option of Lender,shall be immediately due and payable. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower:(a)agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender, (b) contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or(c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which may attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set forth above within 10 days of the giving of notice. 8.Fees.Lender may collect fees and charges authorized by the Secretary. 9.Grounds for Acceleration of Debt. (a)Default.Lender may,except as limited by regulations issued by the Secretary, in the case of payment defaults, require immediate payment in full of all sums secured by this Security Instrument if: (i)Borrower defaults by failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date of the next monthly payment,or (ii)Borrower defaults by failing, for a period of thirty days,to perform any other obligations contained in this Security Instrument. (b) Sale Without Credit Approval. Lender shall, if permitted by applicable law (including Section 341(d) of the Gam-St. Germain Depository Institutions Act of 1982, 12 U.S.C. 1701]-3(d))and with the prior approval of the Secretary, require immediate payment in full of all sums secured by this Security Instrument if: (i) All or part of the Property, or a beneficial interest in a trust owning all or part of the Property,is sold or otherwise transferred(other than by devise or descent),and (ii)The Property is not occupied by the purchaser or grantee as his or her principal residence, or the purchaser or grantee does so occupy the Property but his or her credit has not been approved in accordance with the requirements of the Secretary. (c)No Waiver.If circumstances occur that would permit Lender to require immediate payment in full,but Lender does not require such payments, Lender does not waive its rights with respect to subsequent events. �rvlinu: 40-4N(PAI ro20s1 Pge 5.1 10 BK ! 809PG2742 (d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender's rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid.This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary. (e) Mortgage Not Insured.Borrower agrees that if this Security Instrument and the Note are not determined to be eligible for insurance under the National Housing Act within 60 days from the date hereof, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. A written statement of any authorized agent of the Secretary dated subsequent to 60 days from the date hereof, declining to insure this Security Instrument and the Note, shall be deemed conclusive proof of such ineligibility. Notwithstanding the foregoing,this option may not be exercised by Lender when the unavailability of insurance is solely due to Lender's failure to remit a mortgage insurance premium to the Secretary. 10. Reinstatement.Borrower has a right to be reinstated if Lender has required immediate payment in full because of Borrower's failure to pay an amount due under the Note or this Security Instrument.This right applies even after foreclosure proceedings are instituted. To reinstate the Security Instrument, Borrower shall tender in a lump sum all amounts required to bring Borrower's account current including, to the extent they are obligations of Borrower under this Security Instrument, foreclosure costs and reasonable and customary attorneys'fees and expenses properly associated with the foreclosure proceeding. Upon reinstatement by Borrower,this Security Instrument and the obligations that it secures shall remain in effect as if Lender had not required immediate payment in full. However, Lender is not required to permit reinstatement if: (i) Lender has accepted reinstatement after the commencement of foreclosure proceedings within two years immediately preceding the commencement of a current foreclosure proceeding, (ii) reinstatement will preclude foreclosure on different grounds in the future, or (iii) reinstatement will adversely affect the priority of the lien created by this Security Instrument. 11. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time of payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall not operate to release the liability of the original Borrower or Borrower's successor in interest. Lender shall not be required to commence proceedings against any successor in interest or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made by the original Borrower or Borrower's successors in interest.Any forbearance by Lender in exercising any right or remedy shall not be a waiver Of or preclude the exercise of any right or remedy. 12. Successors and Assigns Bound; Joint and Several Liability; Co-Signets. The covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower,subject to the provisions of paragraph 9(b).Borrower's covenants and agreements shall be joint and several. Any Borrower who co-signs this Security Instrument but does not execute the Note: (a) is co-signing this Security Instrument only to mortgage, grant and convey that Borrower's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower may agree to extend,modify,forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without that Borrower's consent. Initial¢: ®-4N(PA)102oei Page a of 10 81( 1809PG2743 13. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method.The notice shall be directed to the Property Address or any other address Borrower designates by notice to Lender. Any notice to Lender shall be given by first class mail to Lender's address stated herein or any address Lender designates by notice to Borrower.Any notice provided for in this Security instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph. 14. Governing Law; Severability. This Security Instrument shall be governed by Federal law and the law of the jurisdiction in which the Property is located.In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law,such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision.To this end the provisions of this Security Instrument and the Note are declared to be severable. 15.Borrower's Copy.Borrower shall be given one conformed copy of the Note and of this Security Instrument. 16. Hazardous Substances. Borrower shall not cause or permit the presence,use,disposal,storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. Borrower shall promptly give Lender written notice of any investigation, claim, demand,lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower teams, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous Substances affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. As used in this paragraph 16, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in this paragraph 16, "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health,safety or environmental protection. NON-UNIFORM COVENANTS.Borrower and Lender further covenant and agree as follows: 17.Assignment of Rents.Borrower unconditionally assigns and transfers to Lender all the rents and revenues of the Property.Borrower authorizes Lender or Lender's agents to collect the rents and revenues and hereby directs each tenant of the Property to pay the rents to Lender or Lender's agents. However, prior to Lender's notice to Borrower of Borrower's breach of any covenant or agreement in the Security Instrument, Borrower shall collect and receive all rents and revenues of the Property as trustee for the benefit of Lender and Borrower. This assignment of rents constitutes an absolute assignment and not an assignment for additional security only. If Lender gives notice of breach to Borrower: (a) all rents received by Borrower shall be held by Borrower as trustee for benefit of Lender only, to be applied to the sums secured by the Security Instrument; (b)Lender shall be entitled to collect and receive all of the rents of the Property; and(c)each ®4N)PA)102061 Page 7 of 10 OD 8K 1809PG2744� tenant of the Property shall pay all rents due and unpaid to Lender or Lender's agent on Lender's written demand to the tenant. Borrower has not executed any prior assignment of the rents and has not and will not perform any act that would prevent Lender from exercising its rights under this paragraph 17. Lender shall not be required to enter upon, take control of or maintain the Property before or after giving notice of breach to Borrower. However,Lender or a judicially appointed receiver may do so at any time there is a breach. Any application of rents shall not cure or waive any default or invalidate any other right or remedy of Lender. This assignment of rents of the Property shall terminate when the debt secured by the Security Instrument is paid in full. 18. Foreclosure Procedure. If Lender requires immediate payment in full under paragraph 9, Lender may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 18, including, but not limited to,attorneys'fees and costs of title evidence. If the Lender's interest in this Security Instrument is held by the Secretary and the Secretary requires immediate payment in full under Paragraph 9, the Secretary may invoke the nonjudicial power of sale provided in the Single Family Mortgage Foreclosure Act of 1994 ("Act") (12 U.S.C. 3751 et seq.) by requesting a foreclosure commissioner designated under the Act to commence foreclosure and to sell the Property as provided in the Act. Nothing in the preceding sentence shall deprive the Secretary of any rights otherwise available to a Lender under this Paragraph 18 or applicable taw. 19. Release.Upon payment of all sums secured by this Security Instrument,this Security Instrument and the estate conveyed shall terminate and become void. After such occurrence, Lender shall discharge and satisfy this Security Instrument without charge to Borrower. Borrower shall pay any recordation costs. 20. Waivers. Borrower, to the extent permitted by applicable law,waives and releases any error or defects in proceedings to enforce this Security Instrument, and hereby waives the benefit of any present or future laws providing for stay of execution,extension of time,exemption from attachment, levy and sale, and homestead exemption. 21. Reinstatement Period. Borrower's time to reinstate provided in paragraph 10 shall extend to one hour prior to the commencement of bidding at a sheriff's sale or other sale pursuant to this Security Instrument. 22. Purchase Money Mortgage. If any of the debt secured by this Security Instrument is lent to Borrower to acquire title to the Property,this Security Instrument shall be a purchase money mortgage. 23. Interest Rate After Judgment. Borrower agrees that the interest rate payable after a judgment is entered on the Note or in an action of mortgage foreclosure shall be the rate payable from time to time under the Note. 24. Riders to this Security Instrument. If one or more riders are executed by Borrower and recorded together with this Security Instrument, the covenants of each such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Security Instrument as if the rider(s) were a part of this Security Instrument. [Check applicable box(es)]. 0 Condominium Rider D Growing Equity Rider E�l Other[specify] El Planned Unit Development Rider = Graduated Payment Rider Iretials: AN(PA)(02061Page 80l 70 SK 1 809PG2745 BY SIGNING BELOW, Borrower accepts and agrees to the teens contained in this Security Instrument and in any rider(s)executed by Borrower and recorded with it. Witnesses: (Seal) DEBORAH L GRAHAM _Borrower (Seal) -Borrower (Seal) (Seal) -Borrower -Borrower (Seal) (Seal) -Borrower -Borrower (seal) (Seal) -Borrower -Borrower CvN(PA)rozoef Pace 9 of to BKI809PG2746 CertificateofResidence f t� , 1��Q _� l� V do hereby certify that the correct address of the within-named Mortgagee is P.O.Box 2026,Flint,MI 48501-2026. Witness my hand this 24th day of April 2003 Agent of Mortgagee COMMONWEALTH OF PENNSYLVANIA, L`t,(,f118 EP-.R N D County ss; On this, 24th day of Apri 1 2003 ,before me,the undersigned officer, personally appeared DEBORAH L GRAHAM ]mown to me(or satisfactorily proven)to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/she/they executed the same for the purposes herein contained. IN WITNESS WHEREOF,I hereunto set my hand and official seal. My Commission Expires: A NOTARIAL SEAL «� KAREN L.NAILOR,NOTARY PUBLIC SILVER SPRING TWP.,COUNTY OFCUMBERLAND MY COMMISSION EXPIRES MAY 20,2006 ic1D77�y �' ' Title of Officer Y ''Y..7 5 initials: 4N(PA)lozoai Pg.,o m to vleV 1 Certify it-is to he recorded COL"ItY PA 0 Recorder of Deeds Bit 1809PG2747 EXHIBIT A ALL THAT CERTAIN tract or parcel of land and premises, situate,lying and being in the Township of Upper Allen in the County of Cumberland and Commonwealth of Pennsylvania being known as Lot 4G part of Townhouse Plot No. 4 as shown on the final Subdivision Plan of Allenview, Stage II, Section 8, Sheet 2, dated April 12, 1979 and recorded in Plan Book 36,Page 47, as follows,to wit: BEGINNING at the southeast corner of Lot 4-F and going along a line North 36 degrees 08 minutes West a distance of 90.46 feet to a point; thence turning right along a line north 53 degrees 52 minutes East a distance of 20.3 feet to a point; thence turning right along a line South 36 degrees 08 minutes East a distance of 89.93 feet to a point on the northern right of way line of Allenview Drive; thence turning right along said right of way line South 52 degrees 22 minutes 39 seconds West a distance of 20.31 feet to the point of beginning. Parcel#:42-28-2423-242 EXCEPTING THEREOUT AND THEREFROM(IF ANY)THE PREMISES AS MORE FULLY DESCRIBED IN THE FOLLOWING DEED: NONE PIT123-14288 File# PIT123-14288p � fitment# K320538 This commitment is invalid unless the Insuring roKvzsion8 s angd c u es A and B are attached. EXHIBIT C Recording Requested By: 002M O4 Bank of America Prepared By: Bank of America 800-444-4302 1800 Tapo Canyon Road Simi Valley,CA 93063 When recorded mail to: CoreLogic 450 E.Boundary St. Attn:Release Dept. Cha in SC 29036 111111111111111111111111 IN 111110111 IN DocID# 2872909450283968 Tax ID: 42-28-2423-242 Property Address: 902 Allenview Dr Mechanicsburg,PA 17055-8604 Property Location: Township of UPPER ALLEN PAO-AM 17902313 420/2012 This space for Recordefs use MIN#: 1000273-1000237498-1 MERS Phone#: 888-679-6377 ASSIGNMENT OF MORTGAGE For Value Received,the undersigned holder of a Mortgage(herein"Assignor")whose address is 1901 E Voorhees Street,Suite C,Danville,IL 61834 does hereby grant,sell,assign,transfer and convey unto BANK OF AMERICA,N.A.,SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING,LP FKA COUNTRYWIDE HOME LOANS SERVICING,LP whose address is 451 7TH ST.SW#B-133, WASHINGTON DC 20410 all beneficial interest under that certain Mortgage described below together with the note(s)and obligations therein described and the money due and to become due thereon with interest and all rights accrued or to accrue under said Mortgage. Original Lender: SIB MORTGAGE CORP.,A NEW JERSEY CORPORATION Mortgagor(s): DEBORAH L GRAHAM,UNMARRIED Date of Mortgage: 4/242003 Original Loan Amount: $93,941.00 Recorded in Cumberland County,PA on:522003,book 1809,page 2738 and instrument number N/A This Mortgage has not been assigned unless otherwise stated below: IN WITNESS WHEREOF,the undersigned has caused this Assignment of Mortgage to be executed on APR z 3 2012 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. By: 421E�L�� armee Asbistat it etary r State of California County of Ventura on APR 2 3 2012 befor me Victoria Cook Notary Public,personally appeared _ / „rt/iQ who proved to me on the basis of satisfactory evidence to be the person (s)whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies),and that by his/her/their signature(s)on the instrument the person(s), or the entity upon behalf of which the person(s)acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. VICTORIA COOK Irbe Commission 0 1801310 •� Notary Public-CafflorMr Ventura County My Comm.Expires Jun 28,2012 Notary Public: .,;� � � (Sea My Commission Expires: I hereby certify that the address of the within named assignee is: 451 7TH ST.SW#EB-133,WASHINGTON DC 20410 Signature DoclD## 2872909450283968 ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE - CARLISLE, PA 17013 717-240-6370 - Instrument Number-201212518 Recorded On 4/30/2012 At 11:16:21 AM *Total Pages-3 *Instrument Type-ASSIGNMENT OF MORTGAGE Invoice Number-107146 User 1D-KW *Mortgagor-GRAHAM,DEBORAH L *Mortgagee-BANK OF AMERICA N A *Customer-CORELOGIC *FEES STATE WRIT TAX $0.50 Certification Page STATE JCS/ACCESS TO $23.50 JUSTICE DO NOT DETACH RECORDING FEES - $11.50 RECORDER OF DEEDS PARCEL CERTIFICATION $10.00 This page is now part FEES of this legal document. COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 TOTAL PAID $50.50 I Certify this to be recorded in Cumberland County PA ort CU a o RECORDEK O D EDS >rrao *-Information denoted by an asterisk may change during the verification process and may not be reflected on this page. llf IIIIIIIIIIIl�li1111111III EXHIBIT D Supreme Cour Tof Pennsylvania ' a , Cour Commao. Tleas / S� For Prothonotary Use Only: •vi1Cov ,S�''eet CU END County Docket No: Asx I ) � aSg G 4 / t / The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules o court. Commencement of Action: S ❑x Complaint ❑Writ of Summons ❑Petition ❑Transfer from Another Jurisdiction ❑Declaration of Taking E Lead Plaintiffs Name: BANK OF AMERICA,N.A.,AS Lead Defendant's Name: DEBORAH L.GRAHAM C SUCCESSOR BY MERGER TO BAC HOME LOANS T SERVICING,LP F/K/A COUNTRYWIDE HOME I LOANS SERVICING LP Are money damages requested. ❑Yes ❑ X No Dollar Amount Requested: E3within arbitration limits (Check one) ❑x outside arbitration limits j N I Is this a Class Action Suit? ❑ Yes ❑x No Is this an MDJ Appeal? ❑Yes Z No A Name of Plaintiff/Appellant's Attorney: John D.Krohn,Esq.,Id.No.312244,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 PRIIIKARY.CASE.If you are making more than one type of claim,check the one that you consider most important. TORT(do not include Mass 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: E ❑Slander/Libel/Defamation Discrimination ❑Other: ❑Employment Dispute:Other El Zoning Board C ❑ Other: t T I MASS TORT ❑Other: 0 ❑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: i ❑Other Professional: Pa.R.C.P. 205.5 Updated 01/01/2011 flj= t+I PRO TH,FIC: ONO M R'," 2013 HA Y -9 AH 9: 56 "MBERLAND PLNNSYLVCOU TY ANIA PHELAN HALLINAN,LLP John D.Krohn,Esq.,Id.No.312244 1617 JFK Boulevard,Suite 1400 ATTORNEY FOR PLAINTIFF One Penn Center Plaza Philadelphia,PA 19103 215-563-7000 BANK OF AMERICA,N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP COURT OF COMMON PLEAS F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP CIVIL DIVISION 7105 CORPORATE DRIVE PLANO,TX 75024 TERM Plaintiff NO. V. CUMBERLAND COUNTY DEBORAH L. GRAHAM 902 ALLENVIEW DRIVE MECHANICSBURG,PA 17055-8604 Defendant CIVIL ACTION-LAW COMPLAINT IN MORTGAGE FORECLOSURE G�:) Ll a �.A �1��,7 SPS 01T File#: 320444 CU+ 1361 VV 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 4: 320444 1. Plaintiff is BANK OF AMERICA,N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP 7105 CORPORATE DRIVE PLANO, TX 75024 2. The name(s) and last known address(es) of the Defendant(s) are: DEBORAH L. GRAHAM 902 ALLENVIEW DRIVE MECHANICSBURG,PA 17055-8604 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 04/24/2003 DEBORAH L. GRAHAM made, executed and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR SIB MORTGAGE CORP. A NEW JERSEY CORPORATION,which mortgage is recorded in the Office of the Recorder of Deeds of CUMBERLAND County, in Mortgage Book 1809, Page 2738. By Assignment of Mortgage recorded 04/30/2012 the mortgage was assigned to PLAINTIFF,which Assignment is recorded in Assignment of Mortgage Instrument No. 201212518.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. BANK OF AMERICA,N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, directly or through an agent, has possession of the promissory note. The promissory note is either made payable to BANK OF AMERICA,N.A., AS SUCCESSOR BY MERGER File#: 320444 TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING,LP or has been duly endorsed. 5. The premises subject to said mortgage is described as attached. 6. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 12/01/2012 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of Mortgagor to make such payments after a date specified by written notice sent to Mortgagor,the entire principal balance and all interest due thereon are collectible forthwith. 7. The following amounts are due on the mortgage as of 04/16/2013: Principal Balance - $80,096.07 Interest $2,503.02 11/01/2012 through 04/30/2013 Late Charges $129.67 Escrow Deficit $29.20 TOTAL $82,757.96 8. Plaintiff is not seeking a judgment of personal liability (or an in persona m 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. 9. This action does not come under Act 91 of 1983 because the mortgage is FHA-insured. 10. Notice of Intention to Foreclose as set forth in Act 6 of 1974,Notice of Homeowner's Emergency Mortgage Assistance Program pursuant to Act 91 of 1983, as amended in 2008, and/or Notice of Default as required by the mortgage document, as applicable, have File#: 320444 been sent to the Defendant(s)on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s)has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 11. This action does not come under Act 91 of 1983 because the mortgage is FHA-insured. WHEREFORE,Plaintiff demands an in rem judgment against the Defendant(s) in the sum of $82,757.96,together with interest, costs, fees, and charges collectible under the mortgage including but not limited to attorney fees and costs, and for the foreclosure and sale of the mortgaged property. PHELAN HALLINAN, LLP By: John D.Xohn, Esq.,Id.No.312244 Attorney for Plaintiff File#: 320444 LEGAL DESCRIPTION ALL THAT CERTAIN tract or parcel of land and premises, situate, lying and being in the Township of Upper Allen in the County of Cumberland and Commonwealth of Pennsylvania being known as Lot 4G part of Townhouse Plot No. 4 as shown on the final Subdivision Plan of Allenview; Stage II, Section B, Sheet 2, dated April 12, 1979 and recorded in Plan Book 36, Page 47, as follows, to wit: BEGINNING at the southeast corner of Lot 4-F and going along a line North 36 degrees 08 minutes West a distance of 90.46 feet to a point;thence turning right along a line north 53 degrees 52 minutes East a distance of 20.3 feet to a point; thence turning right along a line South 36 degrees 08 minutes East a distance of 89.93 feet to a point on the northern right of way line of Allenview Drive;thence turning right along said right of way line South 52 degrees 22 minutes 39 seconds West a distance of 20.31 feet to the point of beginning. Parcel#: 42-28-2423-242 PROPERTY ADDRESS: 902 ALLENVIEW DRIVE,MECHANICSBURG, PA 17055-8604 PARCEL#42-28-2423-242. File#: 320444 v � VERIFICATION (-VA 4-1 - ,hereby states that he/,h) is of BANK OF AMERICA,N.A., Plaintiff in this matter,that he/Q 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 information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. Nam—�'vo'''(s DATE: - 2-- 13 Title: BANK OF AMERICA,N.A. File#: 320444 Name: GRAHAM File#: 320444 f FORM 1 IN THE COURT OF COMMON PLEAS BANK OF AMERICA,N.A.,AS SUCCESSOR BY OF CUMBERLAND COUNTY,PENNSYLVANIA MERGER TO BAC HOME LOANS SERVICING, h, o LP F/K/A COUNTRYWIDE HOME LOANS c `� SERVICING,LP Plaintiff(s) =M r � vs. o� C:) x� DEBORAH L.GRAHAM / �i n D c-) jf of �p Defendant(s) Civil C o ; c.r, :r- NOTICE OF RESIDENTIAL MORTGAGE FORECLO�ITI 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 a lawyer,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 no charge to you. Once you have been appointed a legal representative,you must promptly meet with that legal representative within twenty(20)days of the appointment date.During that meeting,you must provide the legal representative with all 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 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 out 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 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 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 out reasonable arguments 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: S � Date Johr/Krohn,Esq.,Id.No.312244 Attorney for Plaintiff i FORM 2 Cumberland County Residential Mortgage Foreclosure Diversion Program, Date Financial Worksheet Cumberland County Court of Common Pleas 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 counseling agency. Please provide the following information to the best of your knowledge: CUSTOM 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: Email: Cell: Other: #of people in household: How long? CO-BORIZONVER Mailing Address: City: State: Zip: Phone Numbers: Home: Office: Email: Cell: Other: #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: i Assets Amount Owed: Value: Home: $' $ Other Real Estate: $ $ Retirement Funds: $ $ Investments: $ $ Checking: $ $ Savings: $ $ Other: $ $ Automobile#1:Model: Year: Amount owed: Value: ` Automobile 42:Model: Year: Amount owed: Value: Other transportation(automobiles boats motorcycles): Model: Year: Amount owed: Value Monthly Income Name of Employers: I• Monthly Gross Monthly Net 2. Monthly Gross Monthly Net 3. Monthly Gross Monthly Net Additional Income Description(not wages): I. monthly amount: 2. monthly amount: Borrower Pay Days: Co-Borrower Pay Days: Monthly Expenses: (Please only include expenses you are currently paying) EXPENSE AMOUNT EXPENSE AMOUNT Morta e Food 2"d Mortgage Utilities Car Payment(s) Condo/Neigh, Fees Auto Insurance Med. not covered Auto fuel/repairs Other prop.payment Install. Loan Payment Cable TV Child Su ort/Alim. Spending Mone Da /Child Care/Tuit. 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(Oce): Fax: Email: Have you made application for Homeowners Emergency Mortgage Assistance Program(BE") 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: PIease provide the following information, if known,regarding your lender and lender's loan servicing company: Lender's Contact(Name): Phone: Servicing Company(Name): Contact: Phone: • • I/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 counseling services provided by the above named Borrower Signature Date Co-Borrower Signature Date Please forward this document along with the following information to lender and lender's counsel: 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) 4 .+ SHERIFF'S OFFICE OF CUMBERLAND, Ronny R Anderson lL � 0�i '0�PE�`' Sheriff q a of Lutf��rr/y,;,�r i t1L Jody S Smith Chief Deputy {� 0- Richard W Stewart .Solicitor OF FZE;.-FTH�z$MEFiIFF Bank of America, N.A. vs. Case Number Deborah L. Graham 2013-2582 SHERIFF'S RETURN OF SERVICE 05/10/2013 05:28 PM-Deputy Ryan Burgett, being duly sworn according to law,served the requested Notice of Residential Mortgage Foreclosure Diversion Program and Complaint in Mortgage Foreclosure by "personally"handing a true copy to a person representing themselves to be the Defendant,to wit: Deborah L. Graham at 902 Allenview Drive, Upper Allen Township, Mechanicsburg, PA 17055. RYAN BURGETT, D SHERIFF COST: $39.30 SO ANSWERS, May 13,2013 RbNN`Y R ANDERSON,SHERIFF (c)CountySuifo Sheriff.Teeosoff.Inc. BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, v. DEBORAH L. GRAHAM, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION : NO. 13-2582 CIVIL Defendant : NOTICE TO PLEAD TO: Bank of America, N.A. Molly Q. Campbell, Esquire REED SMITH LLP 1717 Arch Street, Suite 1300 Philadelphia, PA 19103-7301 Attorneys for Plaintiff -v You are hereby notified to file a written response to the enclosed DEFENDANT'S AMENDED ANSWER WITH NEW MATTER & COUNTERCLAIMS TO PLAINTIFF'S COMPLAINT within twenty (20) days from service hereof or a judgment may be entered against you. Dated: 1.1 /(1- C y 1 LL Stephen K. Portko, Esq. 101 South U.S. Route 15 Dillsburg, PA 17019 Attorney for Defendant BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, v. DEBORAH L. GRAHAM, Plaintiff : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL DIVISION • : NO. 13-2582 CIVIL Defendant . DEFENDANT'S AMENDED ANSWER NEW MATTER & COUNTERCLAIMS TO PLAINTIFF'S COMPLAINT IN MORTGAGE FORECLOSURE AND NOW, come Defendant, Deborah L. Graham, by her attorney, who files the within Amended Answer with New Matter & Counterclaims to Plaintiffs Complaint, as follows: 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 1 of the Complaint and therefore denies the allegations thereof. 2. Admitted as to the named Defendant and Defendant's address. Denied as to the remaining averments. On the contrary, Defendant did not make, execute and deliver a mortgage to Plaintiff and Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments contained in paragraph 2 of the Complaint and therefore denies the allegations thereof. 3. Denied. On the contrary, the Complaint fails to allege any facts that MERS was the owner of the note and mortgage or that it validly assigned the same. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments contained in paragraph 3 of the Complaint and therefore denies the allegations thereof. 4. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments contained in paragraph 4 of the Complaint and therefore denies the allegations thereof. 2 5. Denied. On the contrary, Defendant did not make, execute and deliver a mortgage to Plaintiff and the Complaint does not attach a copy of the mortgage that Plaintiff claims was assigned to it. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the remaining averments contained in paragraph 5 of the Complaint and therefore denies the allegations thereof. 6. Denied. Defendant believes and therefore avers that the mortgage does not set forth the terms of payment but refers to the note, which note is not attached to the Complaint or recorded with the mortgage and, therefore, the allegations are denied. By way of further answer, the terms of the mortgage and applicable FHA servicing guidelines referred to therein, constitute a statutory condition precedent to foreclosure which denies Plaintiff's ability to carry out this foreclosure. 7. Denied. Such amounts are not due because Plaintiff failed to comply with the terms of the mortgage and with a statutory condition precedent to foreclosure which denies Plaintiffs ability to carry out this foreclosure. By way of further answer, the mortgage does not set forth the terms of payment but refers to the note, which note is not attached to the Complaint and, therefore, the allegations are denied. 8. Denied. The allegations of Paragraph 8 of the Complaint are legal conclusions to which no response is required. To the extent an answer may be appropriate, these allegations are denied. On the contrary, Plaintiff is not entitled to recover such fees because the terms of the mortgage and applicable FHA servicing guidelines referred to therein, constitute a statutory condition precedent to foreclosure, which denies Plaintiff's ability to carry out this foreclosure. 9. Denied. To the contrary, the Complaint does not attach the purported Notice of Default or give the dates sent to Defendant in violation of Rule 1019(f) and (i). By way of further answer, after reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth or falsity of the averment contained in paragraph 9 of the Complaint and therefore denies the allegations thereof. 10.Denied. The allegations of Paragraph 10 of the Complaint are legal conclusions to which no response is required. By way of further answer, Plaintiff has not provided proper notice because the terms of the mortgage and applicable FHA servicing 3 guidelines referred to therein, constitute a statutory condition precedent to foreclosure which denies Plaintiffs ability to carry out this foreclosure. WHEREFORE, Defendant respectfully requests that Plaintiffs Complaint be dismissed, and that judgment be entered in favor of Defendant with attorney's fees and costs, and that Defendant be awarded any other relief that this Honorable Court deems appropriate. NEW MATTER 11. Defendant incorporates his answers to paragraphs 1 through 10 above as if set forth at length herein. 12.At the closing of the subject "loan transaction", Defendant was presented with a Promissory Note and Mortgage, naming SIB MORTGAGE CORP. (herein "SIB") as Lender but giving the Security Agreement to Mortgage Electronic Registration Systems, Inc. (herein "MERS") "solely as nominee for Lender". This transaction designated by SIB as a Loan, extended consumer credit which was subject to a finance charge and which was initially payable to SIB. 13. The loan transaction designated by SIB as a Loan, extended consumer credit which was subject to a finance charge and which was initially payable to SIB. However, no loan was ever made, directly or indirectly by the Lender on the Note and Mortgage because this was a table funded loan in which an undisclosed third party funded the loan. 14. The Defendant's mortgage was defective on its face for naming the wrong lender and for not disclosing, as required by Federal and Pennsylvania law all the parties to the transaction and all the intermediaries who were receiving compensation and profits arising from the origination of the loan — since it was the investor funds that were used in the origination or acquisition of the loan. 15.0n information and belief, it is affirmatively alleged by Defendant that the originator shown on the promissory note and mortgage (SIB) was a naked nominee, that the mortgage therefore had two nominees and no real party in interest, that the mortgage lien was never perfected, and that neither the note nor the mortgage is legally enforceable because the reference is to a loan transaction that never in fact occurred. 4 16. Defendant affirmatively alleges that she was tricked into signing the documents that were predicated upon the advance of money by the originator — an advance that never occurred. Upon information and belief, the funds that were loaned to Defendant came from investment dollars generated by the sale of interests in one or more Trusts, in the form of Mortgage Backed Securities, aka Mortgage Bond, and this allegation is based upon the filings of the parent company with the Security and Exchange Commission ("SEC"), which filings, among other things, demonstrate that the business of the originator was not lending. 17. Unbeknownst to Defendant, immediately or within days of the closing, SIB assigned or transferred Defendant's mortgage loan to an affiliate or third party who packaged it for securitization purposes and transferred it to GINNIE MAE — GII FX G/F — 6BPS ("Trust") shortly thereafter. 18. Prior to the closing, SIB and/or its affiliate and/or undisclosed third parties disguised the transaction to create the appearance of the lender being a properly chartered and registered financial institution authorized to do business and to enter into the subject transaction when in fact the real party in interest was not disclosed to Defendant, as aforesaid, and neither were the various fees, rebates, refunds, kickbacks, profits and gains of the various parties who participated in this unlawful scheme. 19. Their purpose was solely to collect fees, rebates, kickbacks and profits that were never disclosed to Defendant and the sham loan transaction has only recently been discovered by Defendant through consultation with experts in securitization of residential mortgage loans, and diligent research including the filings of some parties with the U.S. Securities and Exchange Commission which disclose the normal manner of operating this fraudulent scheme. 20. Plaintiff notified Defendant that it did not own Defendant's loan and only serviced the loan on behalf of GINNIE MAE — GII FX G/F — 6BPS ("Trust"). 21.As a result, Defendant requested and demanded compliance with Qualified Written Requests under Real Estate Settlement Procedures Act, the Truth in Lending Act, and other applicable state and Federal Statutes which Plaintiff has either ignored or refused to acknowledge or refused to resolve, within the time limits imposed on Plaintiff by Federal law. 5 22. Plaintiff does not allege that it is a "holder in due course" and it has not alleged the source of its authority to claim "rights to enforce". Accordingly, Plaintiff admits that it is not a purchaser for value, in good faith without knowledge of Defendant's defenses. 23. Upon information and belief, Defendant alleges that: (a) Plaintiff is not the owner of the Note and Loan; (b) Plaintiff did not pay value for the Note and Loan to the party that previously owned it, which party would have had to pay value for the Note and Loan; and (c) thus, Plaintiff is not secured with the mortgage on the Property. 24. Defendant denies that Plaintiff is the holder of the note or that Plaintiff has the right to enforce the Note. Defendant denies the authenticity, validity and authority to make any indorsements that appear on the original note. 25. Defendant denies the validity and authority not to have the indorsements that were required to be signed or stamped upon the Note, pursuant to the terms of the Securitization Documents, including the lack thereof. 26. Since Defendant has denied these matters in the pleadings, Plaintiff has the burden of proof on each of these allegations. 27.Accordingly, Defendant affirmatively alleges that any "sale" of the loan was a sham unsupported by consideration and that the true lender was concealed from Defendant for the purpose of creating a false paper trail and a false history of payments that would encourage investors to buy more mortgage bonds. 28. Further, the funds that were used at closing came from investment dollars generated by the sale of interests in one or more MBS Trusts, in the form of Mortgage Backed Securities, aka Mortgage Bonds. Alternatively, no funds actually ever changed hands. 29. Upon information and belief, SIB sold and transferred the Note to the first of a series of entities within hours or days of its execution. After said sale, SIB no longer had any interest in the Loan or Note and no power to transfer it to Plaintiff, because it had already sold and transferred to another. 30. Moreover, by concealing and blocking information about the true lender, Defendant was prevented from reinstatement, modification, mediation or offset by the receipt of funds paid in mitigation. 6 31.The Loan Seller, SIB, is a financial institution that was paid a fee to pose as a residential mortgage lender, when in fact the source of loan funds and the actual lender (Investors in Certificates) and underwriter (Mortgage Aggregator and Investment Banker) were other parties whose identities and receipt of fees and profits were withheld from Defendant at Closing and continue to be withheld from Defendant by the Plaintiff contrary to the requirements of Federal Law and applicable State Law. 32. Unknown to Defendant, SIB (the Loan Seller), acting as principal in its relationships with the mortgage broker and mortgage originator, induced the Defendant into a transaction that did not and could not meet normal underwriting standards for a residential mortgage. 33. The Loan Seller posed as a conventional mortgage lender thus leading Defendant to reasonably believe that the Loan Seller, the mortgage broker, and the loan originator had an interest in the success (repayment of the loan) of the transaction that Defendant was induced to believe was being executed at the time of the "closing" of the subject loan transaction. 34. In fact, Defendant relied upon the due diligence of the apparent "Lender" (i.e., actually the Loan Seller) in accepting and executing the closing documents. In fact, no "lender" was involved in the closing in the sense of an entity performing due diligence and evaluation pursuant to national standards for underwriting and evaluating risk of loaning money in a residential loan closing. 35. Thus no bank or other financial institution actually performing under the standards, rules and regulations governing such institutions was the "lender" which is the basis for Defendant's counterclaims, to wit: that the inflated fees added an undisclosed cost to the loan which when added to the other terms, disclosed and undisclosed, and amortized over the real expected life of the "loan" exceeds the limits set by the State legislature for usury and is not subject to exemption because the presence of a financial institution in the transaction was a ruse in which the form of the transaction covered over and mislead the Defendant as to the real parties in interest and the fees generated by the production of the subject "loan transaction." 7 36. Defendant was denied compliance under Real Estate Settlement Procedures Act, the Truth in Lending Act, and other applicable state and Federal Statutes which the Plaintiff has either ignored or refused to acknowledge or refused to resolve. 37. The Loan Seller, SIB, was named as the Payee on the subject promissory note, however, MERS was given the mortgage as "nominee for Lender" under the mortgage terms allegedly securing the performance under the subject note. In accordance with State law, the mortgage was recorded in the county records. 38. Notwithstanding the above, and without the knowledge of the Defendant, SIB had entered into Assignment and Assumption Agreements with one or more parties and Pooling and Service Agreements with one or more parties including but not limited to the mortgage aggregator prior to or contemporaneously with the "Closing" of the subject "loan transaction." 39. Under the terms of these agreements, SIB received a sum of money, usually on receiving an application for a loan equal to the gross amount of the loan sought by Defendant plus a fee of 2.5% or more which was allocated to the subject loan transaction. 40. Contrary to the documents presented before and during the "closing" of the "loan transaction" the SIB was neither the source of funding nor the "Lender." 41.Thus at the time of recording, the source of funding and the "Lender" was a different entity than the nominal mortgagee and was neither named nor disclosed in any fashion. 42. The security for the "loan" thus secured an obligation that had been paid in full by a third party. Said third party(ies) was acting as a financial institution or "Lender" without even having been chartered or registered to do so despite regulations to the contrary from laws and rules of State or Federal authorities and/or agencies. 43. Defendant does not know what version of documentation was presented to the Mortgage Aggregator and if the Mortgage Aggregator took one or more varying descriptions of the alleged "loan documents" into more than one pool of assets which was eventually sold for the purpose of securitizing the assets of the pool which included the subject loan transaction either once or more than once. 8 44. By naming MERS in the mortgage as "nominee for Lender" and then subsequently recording an assignment back to Plaintiff in the county records, Plaintiff attempts to conceal the non -recorded Pooling and Services Agreement and a non -recorded Assignment and Assumption Agreement 45. The note from the subject "loan transaction" was eventually allocated into a new corporation (Special Purpose Vehicle) formed for the express purpose of holding the pooled assets under certain terms. 46. The terms included the allocation of payments from one note to pay any deficiency in payment of another note in unrelated "loan transactions" contrary to the terms of each such note which required payments to be allocated to the principal, interest, escrow and fees associated with only that specific "loan transaction." 47. Whether such "deficiency" was caused by the difference between the higher general terms of description of the note or the lower actual payment requirements from the "borrower" is not known due to the refusal of SIB or Plaintiff to provide any such information. 48.The pool assets, including the Plaintiff's subject "loan transaction" were pledged completely to the owners of the "asset-backed securities." All the certificates were then transferred to a Seller who in turn sold the certificates in varying denominations, each of which had slightly different terms depending upon which segment of the pool (tranche) secured the investment. 49. If there is a holder in due course of the Defendant's note arising from the subject "loan transaction" it is the investors who purchased said securities (certificates). Some of said securities are held by the original purchaser thereof, others were sold at weekly auction markets, others were paid by re -sales of property that was "secured", others were paid from prepayments, others were paid by sale at full or partial price to the investment bank that originated the entire transaction, some of which might be held by the Federal Reserve as non- recourse collateral, and others might have been paid by one or more of the insurance, credit default swaps, cross guarantees or cross collateralization of the segment of the pool that secured the relevant investor who owned certificates backed by a pool of assets that included the subject "loan transaction." 9 50. In order for this Plaintiff to maintain legal standing in connection with the subject loan transaction they are required to show the entire chain of title of the note and the entire chain of title of the mortgage. They have concealed this information leading Defendant to conclude that the Plaintiff cannot produce such evidence of a complete chain of title or are intentionally withholding the information that would show breaks in such chain. 51. The fact that the "loan" was table -funded without a disclosed source of funds and without disclosing thousands of dollars in fees all contrary to the requirements of state and federal law was withheld from Defendant by SIB and continues to be withheld by Plaintiff 52. Defendant alleges the closing was an "alleged loan closing" because in fact it was part of an undisclosed hidden illegal scheme to issue unregulated securities (mortgage backed securities) based upon the negotiation of non-negotiable notes, the terms of which had been changed, altered, amended or modified AFTER the execution by the Defendant. 53. SIB then purported to "negotiate" the note by adding terms which allowed the proceeds of the note to be allocated to the payment of the notes of other borrowers and adding co -obligors as aforesaid through insurance, guarantees, additional collateralization and reserves all of which were undisclosed, as aforesaid. 54. The note was not negotiable because it was no longer an unconditional promise to pay by the original borrower. The terms had changed, adding conditions to payment that were inherent in the "securitization process" that SIB fraudulently promoted. 55. Said "negotiation" of Defendant's note was in actuality the theft of her identity to hide the vast number of "toxic waste" mortgages, notes and obligations that the enterprise SIB was selling up through their "securitization" chain. 56.The end result of the false and misleading representations and material omissions of SIB as to the true nature of the mortgage loan actually being processed, which said SIB had actual knowledge was in direct conflict with the original Uniform Residential Loan Application, early TIL, and Defendant's stated intentions and directions to said SIB at the time of original application for the loan, fraudulently caused Defendant to execute predatory loan documents. 10 57. At no time whatsoever did SIB ever advise Defendant (nor, as far as Defendant can determine, any "investor" in certificates of mortgage-backed securities) that: a. the mortgage loan being processed was not in her best interest; b. that the mortgage loan was an inter -temporal transaction (transaction where terms, risks, or provisions at the commencement of the transaction differ at a later time) on which Defendant was providing cover for SIB's illegal activities; c. that the originating "lender", that being SIB and/or undisclosed third parties, had no intention of retaining ownership interest in the mortgage loan or fully servicing same and in fact may have and probably had already pre -sold the loan, prior to closing, to a third party mortgage aggregator pursuant to previously executed documentation (Assumption and assignment Agreement, Pooling Services Agreement, etc.) all executed prior to Defendant's "loan Closing." d. that the mortgage loan was actually intended to be repeatedly sold and assigned to multiple third parties, including one or more mortgage aggregators and investment bankers, for the ultimate purpose of bundling the Defendant's mortgage with hundreds or perhaps thousands of others as part of a companion, support, or other tranche in connection with the creation of a REMIC security known as a Collateralized Mortgage Obligation ("CMO"), also known as a "mortgage-backed security" to be sold by a securities firm (and which in fact ended up as collateral for Asset -Backed Securities Certificates, created the same year as the closing); e. that the mortgage instrument and Promissory Note may be sold, transferred, or assigned separately to separate third parties so that the later "holder" of the Promissory Note may not be in privity with or have the legal right to foreclose in the event of default; and f. that in connection with the multiple down line resale and assignment of the mortgage and Promissory Note that assignees or purchasers of the Note may make "pay -downs" against the Note which may have an effect on the true amount owed by the Defendant on the Note. 58. As a result of the closing and in connection therewith, SIB placed the Defendant into a pool of a sub -prime mortgage programs, with SIB intentionally misleading Defendant and the other borrowers and engaging in material omissions by failing to disclose to 11 Defendant and other borrowers the fact that the nature of the mortgage loan applications had been materially changed without Defendant's knowledge or consent. 59. SIB was under numerous legal obligations as fiduciaries and had the responsibility for overseeing the purported loan consummation to insure that the consummation was legal, proper, and that Defendant received all legally required disclosures pursuant to the Truth -In- Lending Act and RESPA both before and after the closing. 60. Defendant, not being in the consumer lending, mortgage broker, or residential loan business, reasonably relied upon the SIB to insure that the consumer credit transaction was legal, proper, and complied with all applicable laws and regulations. 61. SIB assigned or attempted to assign the Note and mortgage to parties who did not take these instruments in good faith or without notice that the instruments were invalid or that Defendant had a claim in recoupment. AFFIRMATIVE DEFENSES (Plaintiff Lacks Standing) 62. Plaintiff is not the true owner of the claim sued upon, is not the real party in interest and is not shown to be authorized to bring this foreclosure action. 63. Upon information and belief, the mortgage note has been paid in whole or in part by one or more undisclosed third party(ies) who, prior to or contemporaneously with the closing on the "loan", paid the originating lender (SIB) in exchange for certain unrecorded rights to the revenues arising out of the loan documents. 64. Upon information and belief and in connection with the matters the subject of paragraph "63" above, Plaintiff (foreclosing party) has no financial interest in the note or mortgage. 65. Upon information and belief, the original note was destroyed or was transferred to a structured investment vehicle which may be located offshore, which also has no interest in the note or mortgage or revenue thereunder. 66. Upon information and belief, the revenue stream deriving from the note and mortgage was eviscerated upon one or more assignments of the note and mortgage to third parties and parsing of obligations as part of the securitization process, some of whom were joined as co -obligors and co -obligees in connection with the closing. 12 67.To the extent that SIB has been paid on the underlying obligation or has no legal interest therein or in the note or mortgage, or does not have lawful possession of the note or mortgage, Plaintiffs allegations of assignment, and possession and capacity to institute foreclosure constitute a fraud upon the court. 68. Based upon one or more of the affirmative defenses set forth herein, Defendant is entitled to a release and satisfaction of the note and mortgage and dismissal of the foreclosure claim with prejudice. (Failure to State a Cause of Action) 69. Plaintiff has failed to state a claim upon which relief may be granted. 70. If any monies are determined to be owing to Plaintiff by Defendant, Plaintiffs recovery is limited by and subject to Defendants' right of setoff. (Failure of Contractual Condition Precedent) 71. Because Defendant's loan is an FHA -insured loan, Plaintiff was required to comply with the payment forbearance, mortgage modification, and other foreclosure prevention loan servicing or collection requirements imposed on Plaintiff and the subject mortgage by federal regulations promulgated by HUD, pursuant to the National Housing Act, 12 U.S.C. § 1710(a). These requirements must be followed before a mortgagee may commence foreclosure. 24 C.F.R. Part 203(C), Servicing Responsibilities Mortgagee Action and Forbearance Paragraph 9(a) of the subject mortgage and Paragraph 6(B) of the subject note. 72. Plaintiff failed to provide notices and follow all of the FHA servicing guidelines/HUD handbooks as required by and/or that complies with Paragraphs 9(d) and 13 of the subject mortgage. 73. Plaintiff failed to make any reasonable efforts as required by federal regulations and the terms of the note and mortgage to arrange a face to face meeting with Defendant before three full monthly installments were unpaid to discuss her circumstances and possible foreclosure avoidance. 24 C.F.R. §203.604. 13 74. Plaintiff is required under federal law to adapt its collection and loan servicing practices to Defendant's individual circumstances and to re-evaluate these techniques each month after default and Plaintiff failed to do so. 75. Plaintiff failed to perform its servicing duty to Defendant to manage the subject mortgage as required by FHA's special foreclosure prevention workout programs which must include and allow for the restructuring of the loan whereby the Defendant pays out the delinquency in installments or advances to bring the mortgage current. 76. Plaintiff further denied Defendant access to a repayment plan or special forbearance in the form of a written agreement that would reduce or suspend her monthly mortgage payments for a specific period to allow her time to recover from the financial hardship she was suffering through no fault of her own. Such a plan can involve changing one or more terms of the subject mortgage in order to help Defendant bring the claimed default current, and thereby prevent foreclosure. 77. Plaintiffs failure to comply with the FHA repayment plan or special forbearance workout programs denied Defendant the required access to explore alternatives to avoid foreclosure prior to the addition of additional foreclosure fees and costs. 78. Defendant is being denied and deprived by Plaintiff of her right to access the required mortgage servicing under the terms of the mortgage Plaintiff seeks to enforce. Plaintiff is illegally subjecting her to this foreclosure action, thereby forcing her to defend the same while charging illegal court costs, other related fees, and attorney fees. Defendant is having her credit slandered and negatively affected, all of which constitutes irreparable harm to her the purpose of injunctive relief. 79.As a proximate result of the Plaintiff's unlawful actions, Defendant continues to suffer the irreparable harm described above for which monetary compensation is inadequate. 80. Defendant has the right under the terms of the mortgage to access the foreclosure prevention servicing prescribed by FHA laws, regulations, orders and guidelines which are being denied to her by the Plaintiff. 81. As a result, Defendant has been denied a good faith opportunity, pursuant to the mortgage, to avoid acceleration and this foreclosure. (Failure of Good Faith & Fair Dealing: Unfair & Unacceptable Loan Servicing) 14 82. Plaintiff intentionally failed to act in good faith or to deal fairly with the subject Defendant by failing to follow the terms of the mortgage that require compliance with applicable standards of residential single family mortgage servicing as described in these Affirmative Defenses thereby denying this Defendant access to the residential mortgage servicing protocols applicable to the subject note and mortgage. (Unclean Hands) 83. The plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining the equitable relief of foreclosure from this Court. 84. The Plaintiff's unclean hands result from the Plaintiff's improvident and predatory intentional failure to comply the mortgage or with the required FHA pre -suit loss mitigation options prior to bringing the subject foreclosure and has failed to consider Defendant for the requisite loan modification required for consumers' whose lenders/serviciers received TARP funds under the Making Home Affordable Program. 85. Plaintiff filed and continues to maintain this action even though it knew it did not have standing to file this lawsuit and then proceeded to manufacture an assignment of mortgage to give the impression it had and does have standing. 86.As a matter of equity, this Court should refuse to foreclose this mortgage because acceleration of the note would be inequitable, unjust, and the circumstances of this case render acceleration unconscionable. 87. This court should refuse the acceleration and deny foreclosure because Plaintiff has waived the right to acceleration or is estopped from doing so because of misleading conduct and unfulfilled contractual and equitable conditions precedent. (Illegal Charges Added to Balance) 88. Plaintiff has charged and/or collected payments from Defendant for attorney fees, legal fees, litigation attorney fees, foreclosure costs, late charges and other charges and advances, and predatory fees and charges that are not authorized by or in conformity with the terms of the subject note and mortgage. 89. Plaintiff wrongfully added and continues to unilaterally add these illegal charges to the balance Plaintiff claims is due and owing under the subject note and mortgage. 15 (Assignment is a nullity) 90. Plaintiff alleges possession of the note "directly or through an agent" but fails to claim it is the holder of the note with rights of enforcement. In fact, Plaintiff claims that MERS purportedly assigned the mortgage to it, Plaintiff does not allege any facts about the chain of title of the note that was originally made payable to SIB. 91.The note and mortgage are inseparable; the former as essential, the latter as an incident; thus, an assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity. 92. Plaintiff lacks standing to proceed with this litigation because the assignment of the mortgage without the note is a nullity. WHEREFORE, Defendant demands the Plaintiff's Complaint be dismissed with prejudice, and for her attorney's fees and costs and for all other relief to which this Court finds Defendant entitled. COUNTERCLAIMS GENERAL ALLEGATIONS 93. The Defendant reasserts and alleges, as his statement of facts, paragraphs 1 through 92 above as if set forth at length herein. 94. This counterclaim is an action in support of a single consumer victim of predatory lending who was fraudulently induced into a mortgage loan transaction, for which she did not bargain, that was not in her interest, that was misrepresented and coerced, that incorporated falsified documents, that violated state laws, that violated federal laws, that violated common laws, and for which plaintiff -counter -defendant has profited or is attempting to profit to the consumer's detriment. 95. Defendant's home, encumbered by a mortgage given to Mortgage Electronic Registration Systems, Inc. ("MERS") solely as "nominee for Lender" and Lender's 16 successors and assigns and made with SIB the originator named as Lender, is the property at issue in this foreclosure action. 96. Defendant avers that SIB issued securities collateralized by the mortgage under a master pooling and servicing agreement by which all legal and equitable interest was transferred to undisclosed certificate holders; and, accordingly, Plaintiff SIB is not the holder or owner of the note. 97. Defendant avers that SIB, by selling and securitizing the mortgage and note given by Defendant as a publicly traded security available on an open and public securities market, had already recovered (i.e. been paid fair market value) any investment it had made in the Defendant's note, and accordingly, SIB had thereafter no injury standing or personal stake in this action. 98. Plaintiff falsely holds itself out to be the holder in due course or lawfully designated agent for the true holder in due course. 99. Plaintiff is not the genuine creditor, and, further, SIB engaged in the sham of securitized mortgage finance without affording or extending any genuine credit to Defendant, solely for private (corporate) enrichment through a combination of securities fraud (the securitization of mortgage notes without benefit or credit to the consumer "grantor" such as the defendant herein or disclosure in the "origination" process of creating the security). 100. Defendant alleges that her signed mortgage agreement itself was bundled, sold, and transferred together with the note as a collateral backed obligation, and that Plaintiff is aware of this fact, and of the unavailability of the current actual note owner to appear in court, due to lack of actual interest in the subject property, and that Plaintiff has profited from this transaction without giving any notice or credit to the Defendant (whose interest in the property should be adjudicated and evaluated in light of the fiduciary accounting demanded and violates of fiduciary duty alleged in the following paragraphs). 101. What renders this action "typical" of a growing number of mortgage foreclosure proceedings in the United States and yet completely illegal is that Plaintiff is acting as servicer only and, upon information and belief, cannot show that it owns, or if it claims to own, how it acquired by purchase, as opposed to mere "nomination" any legal or 17 equitable interest in the note, for which note SIB, in fact, was compensated by selling the note. 102. Defendant believes and therefore alleges that Plaintiff does not own the original ink -signed "paper" note and that any interest or authority it may have regarding this note is divorced from legal or equitable rights of ownership. 103. Further, because Defendant's mortgage was securitized without Defendant's knowledge or consent, the mortgage was rendered unenforceable. Securitization of the mortgage created restrictions upon modification of the mortgage which had not been approved by the mortgagor. Securitization also converted the mortgage note from an alienable, transferable instrument which was and could be sold into a instrument which cannot be sold, transferred or alienated, without amending the terms and conditions of the mortgage. In either case, the action renders the mortgage unenforceable as a matter of law. Plaintiff lacks standing because plaintiff does not own or hold the note and cannot have the power and authority to represent the actual owners of the note, as a matter of law. 104. Additionally, in filing its foreclosure action, Plaintiff admits that the mortgage is FHA -insured. (emphasis added) 105. Plaintiff's mortgage, (as alleged in paragraph 3 of the Complaint), refers to these HUD regulations that limit Plaintiff's ability to accelerate or foreclose. Specifically, subparagraph 9.(d) "Regulations of HUD Secretary", of the mortgage document states the following: 9. Grounds for Acceleration of Debt. (a) Default. Lender may, except as limited by regulations issued by the Secretary, in cases of payment defaults, require immediate payment in full .... (d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender's rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary. [emphasis added] 106. Plaintiff's cause of action is based on an FHA mortgage that is subject to the provisions of the Department of Housing and Urban Development ("HUD") Servicing Regulations as set forth at 24 CFR 203.500 to 24 CFR 203.508 and 24 CFR 203.600 18 to 24 CFR 203.616. In addition HUD Handbooks 4330.1 and 4330.2 further delineate these servicing requirements for FHA Insured Mortgages. 107. FHA loans have special servicing requirements, including notice of counseling within 45 days of default and a face-to-face meeting with the borrower within 90 days of default. 24. C.F.R. §203.500 et seq. 108. Specifically, Plaintiff must send to Defendant a list of HUD -approved counseling agencies in Pennsylvania within 45 days of default. 109. Also, pursuant to HUD regulations and FHA guidance, FHA -approved mortgage lenders and their servicers are required to engage in loss -mitigation efforts to avoid the foreclosure of HUD -insured single family residential mortgages. 110. Under the Treasury's various rescue and stimulus programs, the Plaintiff received monetary incentives from the Federal government in exchange for the commitment to make efforts to modify defaulting borrowers' single family residential mortgages. 111. In the course of its servicing and oversight of Defendant's mortgage loan, Plaintiff violated these federal laws, program requirements and contractual requirements governing loss mitigation. 112. Plaintiff did not send and Defendant did not receive the counseling notice with list of HUD -approved counseling agencies in Pennsylvania. 113. Plaintiff did not provide Defendant with a list of HUD -approved counseling agencies or a face to face meeting and Plaintiff has not given notice of Defendant's right to obtain counseling advice and assistance as mandated by applicable HUD servicing guidelines. 114. FHA lenders have an equitable obligation to follow the guidelines established in the HUD Handbook in the event of a mortgagor's default. 115. HUD Regulations and servicing policies as well as Pennsylvania law require a foreclosing FHA Insured Mortgagee to service the subject mortgage in accordance with the appropriate HUD servicing regulations or guidelines before acceleration or foreclosure. 116. A foreclosing HUD Insured Mortgagee who does not send the required notice may not proceed with foreclosure, the foregoing requirement being mandatory. 19 117. The mortgage document itself indicates that the regulations dealing with FHA insured mortgages take priority [i.e. "This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary]. 118. Because Plaintiff has not followed or complied with the HUD guidelines and foreclosure prevention remedies available to Defendant, this Court lacks subject matter jurisdiction to proceed with this foreclosure action and should dismiss the foreclosure proceeding. 119. Plaintiff has not, within the reasonable expectations of good faith and fair dealing, afforded to Defendant the foreclosure prevention remedies available under the HUD guidelines. COUNT I: DECLARATORY AND INJUNCTIVE RELIEF 120. The Defendant reasserts and alleges, as his statement of facts, paragraphs 1 through 119 above as if set forth at length herein. 121. This is an action for declaratory and injunctive relief against the Plaintiff. 122. The Plaintiff has no right to pursue this foreclosure because the Plaintiff has failed to provide servicing of this residential mortgage loan as required by the Mortgage document and in accordance with the controlling servicing requirements prior to filing this foreclosure action. 123. Defendant has a right to receive foreclosure prevention loan servicing under the terms of the Mortgage and from the Plaintiff before the commencement or initiation of this foreclosure action. 124. Defendant is in doubt regarding her rights and status of a borrower under the terms of the Mortgage and under the National Housing Act that controls and applies to the subject mortgage. Defendant is now subject to this foreclosure action by reason of the above described illegal acts and omissions of the Plaintiff. 125. Defendant is being denied and deprived by Plaintiff of not only her right to access the required troubled mortgage loan servicing imposed on the plaintiff and applicable to the subject mortgage loan by the National Housing Act but also under the Pooling and Servicing or trust Agreement that controls and applies to the subject mortgage. 20 Defendant is being illegally subjected by the Plaintiff to this foreclosure action, being forced to defend the same and she is being charged illegal predatory court costs and related fees, and attorney fees. Defendant is having her credit slandered and negatively affected, all of which constitutes irreparable harm to Defendant for the purpose of injunctive relief. 126. As a proximate result of the Plaintiffs unlawful actions set forth herein, Defendant continues to suffer the irreparable harm described above for which monetary compensation is inadequate. 127. The Mortgage document provides that Defendant has a right to access the foreclosure prevention servicing prescribed by the National Housing Act and under the Pooling and Servicing or trust Agreement that controls and applies to the subject Defendant which right is being denied to her by the plaintiff. These wrongful and predatory acts committed by the plaintiff, and/or through the plaintiff's agents, employees or predecessor in interest were intentional and deceptive. 128. Additionally, the Plaintiff has no right to pursue a foreclosure because the real party in interest on the lender side may be the owner of the asset backed security issued by the SPV, the insurer through some claim of equitable interest, or the Federal government through the United States Department of the Treasury or the Federal Reserve. The security is a "securitized" bond deriving its value from the underlying mortgages of which the subject mortgage is one. 129. Defendant is informed and believes and thereon alleges that, at all times herein mentioned, the claim of Plaintiff is without any right whatsoever, and Plaintiff has no legal or equitable right, claim, or interest in said property. 130. Plaintiff does not properly hold the mortgage and note it seeks to enforce and Plaintiff has failed to join the proper party with the rights of enforcement. Therefore, Plaintiff has failed to join indispensable parties. 131. There is a substantial likelihood that Defendant will prevail on the merits of her counterclaims. WHEREFORE, Defendant requests judgment against Plaintiff, for declaratory and injunctive relief to restrain Plaintiff from further unlawful conduct, civil penalties, attorney 21 fees and costs, and all other and further relief as the Court may deem just proper and equitable. COUNT II: VIOLATIONS OF UNFAIR TRADE PRACTICE ACT 132. Paragraphs 1 through 119 of Defendant's Amended Answer and New Matter are incorporated herein as if set forth at length herein. 133. The actions of Plaintiff alleged hereinabove constitute a transaction, practice or course of business which operated as a fraud or deceit upon Defendant. 134. The acts, conduct or activity of Plaintiff described hereinabove constitute a violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-2 et seq., ("Act") in that Plaintiff: made false statements or omissions ; failed to disclose the true nature and identity of the mortgage loan transaction and securitization of note; failed to comply with the mortgage document; failed to comply with applicable FHA servicing guidelines and HUD Handbooks; failed to comply with express statements and assurances; failed to acknowledge and act promptly upon oral or written communication with respect to Defendant's dispute of Plaintiff's mortgage loan servicing activities without providing applicable mortgage servicing protocols and foreclosure prevention assistance; failed to give proper notices; and failed to give credit for improper charges to account. 135. Plaintiffs breach of the mortgage terms and enforcement action violated the Act in the following particulars: a. The Plaintiff is claiming, attempting and threatening to collect and enforce this consumer mortgage debt by this foreclosure action when the Plaintiff knows that the right to pursue foreclosure does not exist. b. Plaintiff does not have a legal right to pursue this foreclosure because the plaintiff was required and has failed to first comply with the foreclosure prevention loan servicing obligations imposed on Plaintiff prescribed by the National Housing Act and under the Pooling and Servicing or trust Agreement that controls and applies to the subject mortgage loan. c. These foreclosure prevention loan servicing obligations are imposed on the Plaintiff pursuant to the National Housing Act, 12 U.S.C. Section 1710(a) 22 and/or the Pooling and Servicing or trust Agreement that controls and applies to the subject mortgage loan. d. These special troubled mortgage loan servicing obligations are conditions precedent to the commencement of this foreclosure action because the Plaintiff cannot state a cause of action for foreclosure of single family residential mortgage loan until the Plaintiff complies with the applicable troubled loan servicing obligations described in the affirmative defenses incorporated herein by reference. e. Plaintiff is not the true current owner of the note because Plaintiff does not know the true holder in due course of the note after SIB sold it and, further, it is a fraud and violation of the Pennsylvania UDAP to falsely claim to be a lawful or nominee for the true holder in due course in order to collect a note for a party actually unknown to Plaintiff SIB. g. Plaintiff knew or should have known that SIB took advantage of Defendant and wrongfully manipulated and controlled the mortgage financing unfairly to disadvantage Defendant, who was kept in the dark and deprived of a full and complete understanding of the mortgage credit transaction upon when she entered into, and, that SIB had a duty to divulge the true nature of the mortgage financing transaction, including that the note would be sold to parties unknown and perhaps unascertainable and that SIB and Plaintiff would profit from the origination of Defendant's note immediately upon Defendant's signing of the note which SIB originated. By creating a mortgage backed security or collateral backed obligation of the undisclosed sale, securitization, and transfer of Defendant's mortgage note and contractual obligation and without consent, or even disclosure or notice of the intent to securitize and bundle Defendant's identity in the creation of a securitized equity or collateral based obligation, effected a conversion by fraud of the identity and other intangible rights of Defendant in this transaction. h. Defendant alleges that she made payments to Plaintiff in reliance on the aforesaid misrepresentations of fact concealing the actual sale or transfers of the legal and equitable interests in her note to another party, and was thereby injured, by suffering actual monetary losses. i. Plaintiff has engaged in unfair and deceptive trade practices by its participation in the sale or transfer of securities (mortgage notes) into securitized bundles, and also in connection with concealing the true nature of the transactions involved in mortgage note 'lending" or "origination" as defined under the U.C.C. and thereby swindled this Defendant of many thousands of dollars above the actual value of the note issued and signed by Defendant. 23 j. The securitization of Defendant's mortgage note intended for sale on public securities markets by SIB and participation by Plaintiff in this scheme is a deceptive and misleading devise, scheme, and artifice to defraud Defendant. 136. In addition, as servicer of the residential mortgage loan, Plaintiff's disregard of the terms of the mortgage and failure to discharge its required loan modification obligations required by the mortgage, and related unfair and deceptive practices, include, but are not limited to the following: a. Wrongfully denying Defendant's modification application(s); b. Failing to respond to Defendant's inquiries; c. Failing to gather or losing documentation or other paperwork submitted by Defendant for loan modification; d. Providing false or misleading information to Defendant while initiating foreclosure where Defendant was in good faith actively pursuing loss mitigation remedies; e. Failing to provide accurate and timely information to Defendant who was in need of, and eligible for, loss mitigation services, including a loan modification; f. Miscalculating Defendant's eligibility for loan modification programs and improperly denying loan modification relief to Defendant; 9. Misleading Defendant by representing that her loan modification application would be handled promptly when Plaintiff failed to act on the loan modification in a timely manner; h. Failing to properly process Defendant's application for loan modification, including failing to account for documents submitted by Defendant and failing to respond to Defendant's reasonable request for information and assistance; i. Misleading Defendant by providing false or deceptive reasons for denial of loan modification. 137. By failing to provide Defendant with proper notice and by failing to fully and fairly disclose all material facts regarding Defendant's mortgage account, Plaintiff has 24 engaged in unfair and deceptive acts or practices within the meaning of the Act, 73 P.S. § 201-1 et seq. and Defendant is entitled to recover treble damages. 138. Plaintiff continues to claim, attempt, and threaten to enforce this mortgage debt through acceleration and foreclosure when the Plaintiff knows that such conduct is in bad faith because the Plaintiff has charged and collected money from defendant that she did not owe; forced defendant into deepening indebtedness and then failed to meet the contractual and statutory conditions precedent before filing this action to collect this consumer debt. 139. As a result of the Plaintiff's failure to properly service this mortgage loan before filing this foreclosure action, Defendant has been damaged and Defendant seeks to recover her actual and statutory damages from Plaintiff under 73 P.S. Section 201-1 et seq. WHEREFORE, Defendant demands judgment against Plaintiff, for an award of TREBLE DAMAGES in defendant's favor and against the plaintiff for her actual or statutory damages whichever is greater and for her attorney's fees and costs and for all other relief to which this Court finds Defendant entitled pursuant to 73 P.S. § 201-9.2. COUNT III: BREACH OF CONTRACT 140. Paragraphs 1 through 119 of Defendant's Amended Answer and New Matter are incorporated herein as if set forth at length herein. 141. The conduct, practices and activities of Plaintiff described herein constitute a material breach of the mortgage agreement and, further, constitute a material breach of the representations, statements and undertakings set forth hereinabove, and made expressly or implicitly a part of said agreement for which breach Defendant is entitled to recover damages. 142. Plaintiff has breached its agreement and its duty to exercise good faith to Defendant's detriment. 143. If it is later shown that the Note had been successfully pooled into the MBS Trust that it was intended to be pooled into, or was ever owned by any MBS Trust, it was 25 owned in trust for the benefit of the Investors that purchased interests in the MBS Trust ("Certificate Holders" or "Bond Holders"), as described above. 144. If the Note had been successfully sold, negotiated and transferred to GINNIE MAE, and pooled into the GI! FX GIF 6BPS trust pool, or it were otherwise shown that the pool had an equitable interest in the Loan, the underlying obligation has nevertheless been fully discharged by payments from Defendant and from third parties for which Defendant is legally entitled to be credited. 145. Assuming the Note was successfully pooled into ownership in trust for Certificate Holders, payments were made to or on behalf of said Certificate Holders by third party sources, such as Credit Default Sway ("CDS") sellers. Some of these payments were made pursuant to the contractual provisions that were triggered when occurred what are sometimes called, "Credit Events." The contractual provisions are contained in the securitization documents, and in CDS contracts, in the case of CDS payments. The CDS contracts were purchased to insure the investments of the Certificate Holders. Defendant is legally entitled to receive monetary credit reducing his obligation for third party payments, aka "miscellaneous payments." The "discharge by payment" rule under the U.C.C. provides that payments made by or on behalf of a party obliged to pay the Note to a party entitled to enforce it discharges the obligation of Defendant. 146. If there is any entity that can prove itself to be the owner of the Note and/or obligation, Defendant alleges that the evidence will show that Defendant has been discharged by satisfaction of the entire obligation by a combination of payments from Defendant plus payments from third party sources. If such a party comes forward claiming to own the Loan and Note, Plaintiff is entitled to a complete accounting of all third party or Miscellaneous Payments made to or on behalf of the Investors. WHEREFORE, Defendant requests judgment in her favor and against Plaintiff in an amount not yet quantified but to be proven at trial and such other amounts to be proven at trial, and for costs and attorneys fees; that the Court find that the transactions the subject of this action are illegal and are deemed void and that should the condition present itself, Defendants be granted an accounting and obtain appropriate judgments for unapplied credits as prayed above. 26 COUNT IV: FRAUDULENT MISREPRESENTATION 147. Paragraphs 1 through 119 of Defendant's Amended Answer and New Matter are incorporated herein as if set forth at length herein. 148. Defendant is informed and believes and thereon alleges that Plaintiff is merely a servicer of the loan and entered into Servicing Agreements with one or more parties for the purchase of servicing rights. 149. Plaintiff has engaged in a course of conduct to continue to disguise the original loan transaction so as not to disclose that the real party in interest, i.e. the source of funding for the loan and the person to whom the note was transmitted or eventually "assigned" was neither a financial institution nor an entity or person authorized, chartered or registered to do business in Pennsylvania nor to act as a banking, lending or other financial institution anywhere else. 150. As such, this fraudulent scheme, which started as a plan to trick Defendant into signing what would become a negotiable security used to sell unregulated securities under fraudulent and changed terms from the original note, continues as a sham to use Defendant's interest in the real property to collect interest in excess of the legal rate. 151. Plaintiff knowingly and intentionally has concealed material information from Defendant which is required by Federal Statutes and Regulations to be disclosed to the Defendant. 152. Under the circumstances, the material omissions and material misrepresentations by Plaintiff were malicious. 153. In addition, Defendant, not being an investment banker, securities dealer, mortgage lender, mortgage broker, or mortgage lender, reasonably relied upon the representations of SIB in agreeing to execute the mortgage loan documents. 154. Had Defendant known of the falsity of SIB's representations, Defendant would not have entered into the transactions the subject of this action. 155. The phony Lender, SIB, engaged in material omissions and material misrepresentations that constitute fraud in the inducement and Plaintiff thereafter 27 engaged in material omissions and material misrepresentations to hide and conceal the true nature of the transaction and securitization of the loan. WHEREFORE, Defendants request judgment against Plaintiff as follows: (a) common law rescission of the mortgage loan; (b) termination of the mortgage and security interest in the property the subject of the mortgage loan documents created in the transaction; (c) return of any money or property paid by the Defendant including all payments made in connection with the transactions; (d) an amount of money equal to treble the finance charge in connection with the transactions; (e) relinquishment of the right to retain any proceeds; and (f) actual damages in an amount to be determined at trial, including attorneys' fees. COUNT V: EQUITABLE RELIEF 156. Paragraphs 1 through 155 of Defendant's Amended Answer and New Matter are incorporated herein as if set forth at length herein. 157. The real party in interest on the lender side may be the owner of the asset backed security issued by the SPV, the insurer through some claim of equitable interest, or the Federal government through the United States Department of the Treasury or the Federal Reserve. The security is a "securitized" bond deriving its value from the underlying mortgages of which the subject mortgage is one. Thus Defendant is entitled to quiet title against SIB and/or Plaintiff, clearing title of the purported subject mortgage encumbrance. 158. Defendant is informed and believes and thereon alleges that, at all times herein mentioned, the claim of Plaintiff is without any right whatsoever, and Plaintiff has no legal or equitable right, claim, or interest in said property of Defendant. 159. Defendant therefore seeks a declaration that the title to the subject property is vested in Defendant alone and that SIB and Plaintiff, and each of them, be declared to have no estate, right, title or interest in the subject property and that said SIB and Plaintiff be forever enjoined from asserting any estate, right, title or interest in the subject property adverse to Defendant herein. 28 WHEREFORE, in this Count, Defendants pray this Court will enter judgment against Plaintiff as follows: (a) For an order compelling said SIB and/or Plaintiff to transfer or release legal title and alleged encumbrances thereon and possession of the subject property to Defendant herein; (b) For a declaration and determination that Defendant Defendant is the rightful holder of title to the property and that SIB and/or Plaintiff be declared to have no estate, right, title or interest in said property; (c) For a judgment forever enjoining said SIB and/or Plaintiff from claiming any estate, right, title or interest in the subject property; (d) For costs of suit herein incurred; (e) For such other and further relief as the court may deem proper DEMAND FOR JURY TRIAL Defendant demands trial by jury of all matters so triable as a matter of right. Date: t( f (y 29 Respectfully submitted, Stephen K. Portko, Esquire #34538 101 South U.S. Route 15 Dillsburg, PA 17019 (717)432-9706 Attorney for Defendant Graham VERIFICATION I, Deborah L. Graham, hereby acknowledge that I am Defendant in the foregoing pleading, that I have read the foregoing, and the facts stated therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements herein are made subject to penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. DATE: t I' e•orah L. Graham CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Defendant's Amended Answer with New Matter and Counterclaims to Plaintiff's Complaint was provided by U.S. Mail, postage prepaid, first class, to the following: Date: Molly Q. Campbell, Esquire REED SMITH LLP 1717 Arch Street, Suite 1300 Philadelphia, PA 19103-7301 BY: 30 Stephen K. Portko BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP : F/K/A COUNTRYWIDE HOME LOANS : SERVICING, LP, Plaintiff . v. DEBORAH L. GRAHAM, Defendant . IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION NO. 13-2582 CIVIL _4 rn -22 c CD_ -fl PRAECIPE TO MARK PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANTS' ANSWER WITH NEW MATTER AND COUNTERCLAIM AS MOOT Please mark as moot the Plaintiff's Preliminary Objections to Defendants' Answer with New Matter and Counterclaim. Pursuant to Pennsylvania Rules of Civil Procedure Rule 1028(c)(1) "[A] party may file an amended pleading as of course within twenty days after service of a copy of preliminary objections." Defendants have filed an amended pleading as of course and Plaintiff's preliminary objections to the original pleading shall be deemed moot. Respectfully submitted Dated: (1 ( fig 1 1r - Stephen K. Portko, Esq. 101 South U.S. Route 15 Dillsburg, PA 17019 Attorney for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing "Praecipe to Mark Plaintiff's Preliminary Objections to Defendants' Answer With New Matter and Counterclaim as Moot" was provided by U.S. Mail, postage prepaid, first class, to the following: Date: j ` L l(7 Molly Q. Campbell, Esquire REED SMITH LLP 1717 Arch Street, Suite 1300 Philadelphia, PA 19103-7301 Attorneys for Plaintiff BY: SZ I C_ Q -1P' 2 Stephen K. Portko Molly Q. Campbell Attorney I.D. No. 311289 REED SMITH LLP Three Logan Square Suite 3100 1717 Arch Street Philadelphia, PA 19103 (215) 851-8100 (215) 851-1420 (facsimile) mqcampbell@reedsmith.com } • r I!:02 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BANK OF AMERICA, N.A., AS SUCCESSOR BY : MERGER TO BAC HOME LOANS SERVICING, LP : F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, : No.2013-2582 Plaintiff, v. : MORTGAGE FORECLOSURE DEBORAH L. GRAHAM, Defendant. PRELIMINARY OBJECTIONS OF PLAINTIFF BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP, F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, TO THE AMENDED COUNTERCLAIMS OF DEFENDANT Pursuant to Pa. R. Civ. P. 1028(a)(2), (4) and 1148, Plaintiff Bank of America, N.A, as Successor By Merger To BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing LP ("Plaintiff'), by and through its counsel, hereby sets forth its Preliminary Objections to the Amended Counterclaims of Defendant Deborah L. Graham ("Defendant"), as follows: FACTUAL BACKGROUND 1. This case is a foreclosure action based on a failure to make payments due on a mortgage loan. 2. On April 24, 2003, Defendant executed a Note in the amount of $93,941.00 ("Note") which is secured by a Mortgage ("Mortgage") against Defendant's real property located at 902 Allenview Drive, Mechanicsburg, Pennsylvania 17055-8604 (the "Property"). Copies of Defendant's Note and Mortgage are attached hereto as Exhibits A and B, respectively.] 3. SIB Mortgage Corporation was the lender ("SIB" or "Lender"). See Ex. A. 4. Defendant made, executed, and delivered said Mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for the Lender. See Defendant's Amend. New Matter atil- 12. 5. Thereafter, the Mortgage was assigned (the "Assignment") to Plaintiff on April 23, 2012. A copy of the Assignment is attached hereto as Exhibit C. 6. The Assignment was recorded on April 30, 2012, in Mortgage Book 1809, Page 2738 in the Cumberland County Office=of the Recorder. See Exhibit C. 7. Defendant defaulted on her Mortgage by failing to make the December 1, 2012, payment and all payments thereafter (the "Default"). Amend. Comp. 1- 6. "[T]he trial court [may] properly consider those documents[} which were attached to the defendants' preliminary objections" where the plaintiff averred the existence of such documents. Martin v. Commwealth, Dep 't of Transp., 556 A.2d 969, 971-72 (Pa. Commw. Ct. 1989) (citations omitted). See also Babiarz v. Bell At/. -Pa., Inc., No. 1863, 2001 WL 1808554, at *14 (Pa. Ct. Com. Pl. Nov. 20, 2001); Amended New Matter at ¶ 11 (alleging existence of mortgage and assignment); Defendant's Amended Answer, New Matter and Counterclaims at ¶ 12 (averring existence of Note and Mortgage). 2 8. On May 9, 2013, Plaintiff brought this Amended Complaint in foreclosure against Defendant in light of Defendant's Default ("Foreclosure Complaint"). A copy of the Foreclosure Complaint is attached hereto as Exhibit D. 9. On November 4, 2014, Defendant filed her Amended Answer, New Matter, and Counterclaims. The Amended Counterclaims against Plaintiff are identical to Defendant's initial filing: (1) Declaratory and Injunctive Relief; (2) Violations of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"); (3) Breach of Contract; (4) Fraudulent Misrepresentation; and (5) Equitable Relief.2 10. Defendant alleges that Plaintiff failed to comply with servicing regulations and allegedly did not engage in loss mitigation efforts and/or wrongfully denied Defendant's modification application. See generally Amend. Counterclaims at ¶ 106-113, 136. 11. Specifically, Defendant claims that Plaintiff did not provide her a notice of counseling or a face-to-face meeting within the requisite time frame following the Default. Id. at ¶ 107. 12. Defendant also alleges Plaintiff failed to serve proper notices prior to acceleration or foreclosure following Defendant's Default. Id. at ¶ 117-118. 13. Concerning Plaintiff's loss mitigation efforts, Defendant argues that Plaintiff wrongfully denied Defendant's modification application. Specifically, Defendant alleges that Plaintiff failed to respond to Defendant, failed to gather or lost documentation submitted in connection with the modification application, and miscalculated Defendant's eligibility. Id. at ¶ 136 (a) -(g). 2 Defendant's amended filing is virtually devoid of any new allegations pertaining to the deficiencies as articulated in Plaintiff's original preliminary objections. Instead, Defendant adds a handful of new allegations to serve as a distraction for Defendant's attempt to delay this litigation. 3 14. Defendant alleges that as a result, Plaintiff failed to properly process Defendant's application and, thereafter, provided misleading, false, or deceptive reasons for denial of the loan modification in violation of Pennsylvania law. Id. at 1- 136(h) -(i), 137. 15. Defendant also alleges that her loan was securitized, that the securities were sold to investors, and that Plaintiff has concealed the "entire chain of title of the note and the entire chain of title of the mortgage." See Amend. New Matter at 1- 48-50. 16. Defendant further alleges that because the Mortgage was "securitized without [her] knowledge or consent, the mortgage was rendered unenforceable." Amend. Counterclaims at 85. 17. Plaintiff files these Preliminary Objections to the Amended Counterclaims pursuant to Pennsylvania Rule of Civil Procedure 1148, which restricts the assertion of amended counterclaims in mortgage foreclosures to those "which arise[] from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff's cause of action arose." 18. Defendant improperly attempts to bring Amended Counterclaims for relief based on alleged events that occurred long after the origination of the Mortgage, which should, therefore, be dismissed. Pa. R. Civ. P. 1028(a)(4). 19. Specifically, Defendant's Amended Counterclaims for Declaratory and Injunctive Relief and Equitable Relief seek to "restrain Plaintiff from further unlawful conduct," which relates to Plaintiff's alleged conduct in prosecuting this foreclosure following Defendant's Default, not the origination of the Mortgage. Further, Defendant's Amended Counterclaims for Breach of Contract, Fraudulent Misrepresentation, violations of the UTPCPL, and Equitable -4 Relief concern the alleged securitization of the Mortgage, which, again, is unrelated to the origination of the Mortgage. 20. Even in Defendant's half-hearted attempted to amend the allegations in her filing, Defendant fails to assert allegations relating to the origination of the mortgage. 21. First, in an attempt to confuse the timing Defendant asserts that "immediately or within days of the Closing, SIB transferred Defendant's mortgage loan to an affiliate or third party." Amend. Counterclaims ¶ 17. Despite Defendant's use of the term "immediately," this does not relate to the origination of the Mortgage. 22. Further, Defendant's allegation that the funds used at closing "came from investment dollars generated by the sale of interests in one or more MBS Trusts, in the form of Mortgaged Backed Securities ..." is simply an end-run attack on securitization, which is not permitted under the law. Additionally, these transactions do not relate to the origination of the Mortgage. 23. Plaintiff also files its Preliminary Objections to the Amended Counterclaims pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(2) because Defendant's Amended Counterclaims fail to conform to the rules of court insofar as they seek in personam money damages, which are not permitted in an in rem action for mortgage foreclosure. 24. Specifically, Defendant's Amended Counterclaims for Declaratory and Injunctive Relief, Violations of the UTPCPL, Breach of Contract, and Fraudulent Misrepresentation seek monetary damages. See Amended Counterclaims at "Wherefore" clauses following ¶¶ 131, 139, 142 and 155. Because these claims seek money damages, Plaintiffs Preliminary Objections should be sustained under Pa. R. Civ. P. 1028(a)(2). 5 25. Further, Defendant's Amended Counterclaims are deficient because each of Defendant's Amended Counterclaims is time-barred on its face. Although the statute of limitations is to be pleaded as new matter, it may be raised in Preliminary Objections where "the defense is clear on the face of the pleadings[.]" Petsinger v. Pa. Dep't. of Labor & Indus., 988 A.2d 748, 758 (Pa. Commw. Ct. 2010) (citation omitted). 26. Defendant's Amended Counterclaims for Declaratory and Injunctive Relief and Equitable Relief are subject to a four-year statute of limitation. 42 Pa.C.S.A. § 5525(8). 27. Defendant's UTPCPL claim is subject to a six-year statute of limitations. See, e.g., Gabriel v. O'Hara, 534 A.2d 488, 495 (Pa. Super. Ct. 1987). See also 42 Pa.C.S.A. § 5527(6) ("Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years."). 28. Defendant's Breach of Contract claim is subject to a four-year statute of limitations. See 42 Pa.C.S.A. § 5525. 29, Defendant's Fraudulent Misrepresentation claim is subject to a two-year statute of limitations. See 42 Pa.C.S.A. § 5524(7) (a claim "founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud," "must be commenced within two years"). 30. Defendant's Mortgage was executed on April 24, 2003, but Defendant did not file her Counterclaims until September 12, 2014 — more than eleven years later and nearly twice the longest limitations period for any of her claims. 31. Defendant has not set forth any facts as to why the limitations period does not apply or should be tolled. 6 32. Accordingly, the causes of action set forth in the Amended Counterclaim are time-barred on the face of the pleading, and the Court should sustain Plaintiff's Preliminary Objections and dismiss with prejudice all causes of action asserted in the Amended Counterclaims. 33. In addition, Defendant's Amended Counterclaims based on the alleged securitization of Defendant's Mortgage are deficient and must be dismissed, as the law is clear that securitization neither gives rise to a cause of action nor prevents foreclosure. 34. Finally, Defendant's Amended Counterclaim for Fraudulent Misrepresentation must be dismissed because this Amended Counterclaim is not averred with particularity in accordance with Pa. R. Civ. P. 1019(b) and because it fails to attach the writing upon which it is based as required by Pa. R. Civ. P. 1019(i). 35. Accordingly, all of Defendant's Amended Counterclaims (Counts I-V) should be dismissed with prejudice. WHEREFORE, Plaintiff respectfully requests that this Honorable Court sustain its Preliminary Objections and dismiss each of Defendant's Amended Counterclaims. Respectfully submitted, REED SM4fH LLP Molly Q. Campbell Identification No. 311289 Three Logan Square Suite 3100 1717 Arch Street Philadelphia, PA 19103 DATED: November 21, 2014 Attorneys .for Plaintiff 7 Molly Q. Campbell Attorney I.D. No. 311289 REED SMITH LLP Three Logan Square Suite 3100 1717 Arch Street Philadelphia, PA 19103 (215) 851-8100 (215) 851-1420 (facsimile) mqcampbell@reedsmith.com Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, v. DEBORAH L. GRAHAM, Plaintiff, Defendant. : No.2013-2582 : MORTGAGE FORECLOSURE MEMORANDUM OF LAW IN SUPPORT OF THE PRELIMINARY OBJECTIONS OF PLAINTIFF BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP, F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, TO THE AMENDED COUNTERCLAIMS OF DEFENDANT Plaintiff Bank of America, N.A, As Successor By Merger To BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing LP ("Plaintiff'), by and through its counsel, Reed Smith LLP, hereby files this Memorandum of Law in support of its Preliminary Objections to Defendant Deborah L. Graham's ("Defendant") Amended Counterclaims. I. MATTER BEFORE THE COURT This case is a foreclosure action based on a failure to make payments due on a loan. On April 24, 2003, Defendant executed a Note in the amount of $93,941.00 ("Note") which is secured by a Mortgage ("Mortgage") against Defendant's real property located at 902 Allenview Drive, Mechanicsburg, Pennsylvania 17055-8604 (the "Property"). Defendant has filed an Amended Answer with New Matter and Counterclaims in response to Plaintiff's Complaint. Plaintiff now files the instant Memorandum of Law in Support of the Preliminary Objections seeking to dismiss Defendant's Amended Counterclaims for failure to conform to the laws and rules of court and for legal insufficiency. II. STATEMENT OF QUESTIONS INVOLVED 1. Should the Defendant's Amended Counterclaims be dismissed because they do not relate. to the origination of the Mortgage and are, therefore, prohibited by Pa. R. Civ. P. 1148? SUGGESTED ANSWER: YES. 2. Should Defendant's Amended Counterclaims for Declaratory and Injunctive Relief, Violations of the Unfair Trade Practice Act, Breach of Contract, and Fraudulent Misrepresentation be dismissed because they seek in personam money damages, which are forbidden in this in rem foreclosure proceeding? SUGGESTED ANSWER: YES. 3. Should the Defendant's Amended Counterclaims be dismissed because they are time-barred pursuant to the applicable statute of limitations? SUGGESTED ANSWER: YES. 4. Should Defendant's Amended Counterclaims for Declaratory and Injunctive Relief (Count I), Violations of the Unfair Trade Practice Act (Count II), Breach of Contract -2 (Count III), Fraudulent Misrepresentation (Count IV), and Equitable Relief (V) be dismissed because securitization of a mortgage loan does not give rise to a cause of action? SUGGESTED ANSWER: YES. 5. Should Defendant's Amended Counterclaim for Fraudulent Misrepresentation (Count IV) be dismissed because it is not averred with particularity in accordance with Pa. R. Civ. P. 1019(b)? SUGGESTED ANSWER: YES. 6. Should Defendant's Amended Counterclaim for Breach of Contract (Count III) be dismissed because Defendant failed to attach the writing upon which it is based in violation of Rule 1019(i)? SUGGESTED ANSWER: YES. III. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY On April 24, 2003, Defendant executed a Note in the amount of $93,941.00, which is secured by a Mortgage against Defendant's Property located at 902 Allenview Drive, Mechanicsburg, Pennsylvania 17055-8604. Copies of Defendant's Note and Mortgage are attached hereto as Exhibits A and B, respectively.] Defendant made, executed, and delivered said Mortgage to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for SIB Mortgage Corporation ("SIB" or "Lender"). See Defendant's Answer at ¶ 12; Ex. A. Thereafter, on April 23, 2012, the Mortgage was assigned to Plaintiff (the "Assignment"). A copy of the Assignment is attached hereto as Exhibit C. The Assignment was recorded on 1 "[T]he trial court [may] properly consider those documents[] which were attached to the defendants' preliminary objections" where the plaintiff averred the existence of such documents. Martin v. Commwealth, Dep't of Transp., 556 A.2d 969, 971-72 (Pa. Commw. Ct. 1989) (citations omitted). See also Babiarz v. Bell Atl.-P a., Inc., No. 1863, 2001 WL 1808554, at *14 (Pa. Ct. Com. Pl. Nov. 20, 2001); New Matter at ¶ 11 (alleging existence of mortgage and assignment); Defendant's Amended Answer, New Matter and Counterclaims at ¶ 12 (averring existence of Note and Mortgage). 3 April 30, 2012 in Mortgage Book 1809, Page 2738 in the Cumberland County Office of the Recorder. See Exhibit C. Defendant defaulted on her Mortgage by failing to make the December 1, 2012, payment and all payments thereafter (the "Default"). Amend. Comp. ¶ 6. On May 9, 2013, Plaintiff brought this Complaint in foreclosure against Defendant in light of Defendant's Default ("Foreclosure Complaint"). A copy of the Foreclosure Complaint is attached hereto as Exhibit D. In response to the Foreclosure Complaint, Defendant filed her Answer, New Matter and Counterclaims on September 12, 2014. Following Plaintiff's Preliminary Objections, Defendant filed her Amended Answer, New Matter and Counterclaims on November 4, 2014. Defendant purports to assert five Amended Counterclaims against Plaintiff: (1) Declaratory and Injunctive Relief; (2) Violations of the Unfair Trade Practices ("UTPCPL") and Consumer Protection Law; (3) Breach of Contract; (4) Fraudulent Misrepresentation; and (5) Equitable Relief. These are the same five Counterclaims Defendant set forth in her initial filing. In fact, Defendant has failed to amend any of the deficiencies articulated in Plaintiff's Preliminary Objections filed on October 16, 2014. Aside from adding a handful of factual allegations, there is virtually no difference between Defendant's initial filing and her "amendment." Defendant's "amendment" is nothing more than an attempt to delay this Court's ruling on the substantive issues which are the subject of Plaintiff's Preliminary Objections. Defendant alleges that Plaintiff failed to engage in loss mitigation efforts and/or wrongfully denied Defendant's modification application. See generally Amended Counterclaims, at ¶¶ 107-113, 136. Specifically, Defendant claims that Plaintiff did not provide her a notice of counseling or a face-to-face meeting within the requisite time frame following the Default. Id. at ¶ 107. Defendant also alleges Plaintiff failed to serve proper notices prior to -4 acceleration or foreclosure following Defendant's Default. Id. at ¶¶ 117-118. Concerning Plaintiffs loss mitigation efforts, Defendant argues that Plaintiff wrongfully denied Defendant's modification application because Plaintiff failed to respond to Defendant, failed to gather or lost documentation submitted in connection with the modification application, and miscalculated Defendant's eligibility. Id. at ¶ 136 (a) -(g). Defendant alleges that as a result of the alleged conduct, Plaintiff failed to properly process Defendant's application and, thereafter, provided misleading, false, or deceptive reasons for denial of the loan modification in violation of Pennsylvania law. Id. at ¶¶ 136 (h) -(i), 118. Defendant further alleges that her loan was securitized, that the securities were sold to investors, and that Plaintiff has concealed the "entire chain of title of the note and the entire chain of title of the mortgage." See Amend. New Matter at ¶¶ 48-50. Defendant alleges that the "securitization of Defendant's mortgage note intended for sale on public securities markets by SIB and participation by Plaintiff in this scheme is a deceptive and misleading devise, scheme, and artifice to defraud Defendant." Amended Counterclaims at ¶¶ 128, 135(j), 155, 157. IV. ARGUMENT A. Standards Governing Plaintiff's Preliminary Objections. Plaintiff brings these Preliminary Objections under Pa. R. Civ. P. 1028(a)(2) and (4) and 1148. Under Pa. R. Civ. P. 1028(a)(2), the Court may strike a pleading for failure to "conform to law or rule of court." See Pa. R. Civ. P. 1028(a)(2); Laser Eye Inst., Inc. v. Schulman, 2002 Phila. Ct. Com. Pl. LEXIS 83, at *1-2 (Feb. 6, 2002). As explained more fully below, the laws and rules of this Court do not permit counterclaims in a mortgage foreclosure action that seek money damages or that are unrelated to the creation of the mortgage. See NY.. Guardian 5 Mortgage Corp. v. Dietzel, 524 A.2d 951, 953 (Pa. Super. Ct. 1987); Mellon Bank, N.A. v. Joseph, 406 A.2d 1055, 1060 (Pa. Super. Ct. 1979). Further, in accordance with Pa. R. Civ. P. 1028(a)(4), the trial court may dismiss an action for failure to state a claim upon which relief can be granted when "it is clear from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish a right to relief." Pa. AFL-CIO v. Commonwealth, 757 A.2d 917, 920 (Pa. 2000); Goodman v. PPG Indus., Inc., 849 A.2d 1239, 1243 (Pa. Super. Ct. 2004) (dismissal is appropriate when it "appear[s] with certainty that the law would not permit recovery by the plaintiff upon the facts averred"). Under Pa. R. Civ. P. 1028(a)(4), in ruling on an objection in the nature of a demurrer, "the court must consider all of the well-pleaded material facts set forth in the petition and all reasonable inferencesdrawn from those facts." Allegheny County Sportsmen's League v. Rendell, 860 A.2d 10, 14 (Pa. 2004). The Court, however, "need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion." Myers v. Ridge, 712 A.2d 791, 794 (Pa. Commw. Ct. 1998); S. Union Twp. v. Commonwealth, 839 A.2d 1179, 1185 n.8 (Pa. Commw. Ct. 2003). The court should sustain an objection in the nature of a demurrer "where the complaint, on its face, fails to establish a legal right to relief." Mazzagatti v. Everingham, 516 A.2d 672, 675 (Pa. 1986). Finally, Pa. R. Civ. P. 1148 allows only a counterclaim in a mortgage foreclosure "which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiffs cause of action arose." This Rule limits counterclaims to causes of action that are "part of, or incident to, the creation of the mortgage itself." Mellon Bank, N.A., 406 A.2d at 1060. Counterclaims in a mortgage foreclosure action that do not pertain to the creation of the 6 mortgage must be dismissed pursuant to Rule 1148. Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. Ct. 1998), appeal denied, 734 A.2d 861 (Pa. 1999). B. All Of The Counterclaims Are Barred By Rule 1148 Because They Do Not Relate To The Origination Of The Mortgage. Defendant's Amended Counterclaims are barred by Pa. R. Civ. P. 1148. Rule 1148 allows only a counterclaim "which arises from the same transaction or occurrence or series of transactions or occurrences from which the plaintiff's cause of action arose." This Rule limits counterclaims in a mortgage foreclosure action to causes of action that are "part of, or incident to, the creation of the mortgage itself." Mellon Bank, N.A., 406 A.2d at 1060. The Pennsylvania Superior Court has repeatedly held that counterclaims in a mortgage foreclosure action that do not pertain to the creation of the mortgage must be dismissed. Cunningham, 714 A.2d at 1057; Chrysler First Bus. Credit Corp. v. Gourniak, 601 A.2d 338, 341-42 (Pa. Super. Ct. 1992); Overly v. Kass, 554 A.2d 970, 974 (Pa. Super. Ct. 1989). Here, despite Defendant's second attempt to allege a cause of action, her Amended Counterclaims all pertain to alleged events that occurred long after the origination of the Mortgage and should, therefore, be dismissed. As noted, Defendant executed the Mortgage loan transaction documents on April 24, 2003. See Exhibits A and B. Defendant's Amended Counterclaims for Declaratory and Injunctive Relief (Count I) and Equitable Relief (Count V) — which seek to "restrain Plaintiff from further unlawful conduct" and request relief from the Court — are unrelated to the origination and creation of the Mortgage, and should be dismissed on that ground. Defendant is specifically seeking relief from the foreclosure, which relates to Defendant's Default under the Mortgage, not its origination. Wainright v. Bank of Am., Nat. Assoc., 3:10 -CV -01637 -ARC, 2010 WL 3749264, *3 (M.D. Pa. Sept. 21, 2010) ("Plaintiffs could not assert their claims against the Defendants in the state foreclosure action, since their 7 claims stem from Defendants behavior in the foreclosure process, rather than at the creation of the mortgage.") (emphasis in original). Further, any alleged "right" Defendant asserts that Plaintiff is denying her, does not stem from the creation of the Mortgage; rather, Defendant alleges the Pooling and Servicing agreement controls. Amend. Counterclaim ¶ 127. Likewise, Defendant's Counterclaims under the UTPCPL and for Breach of Contract and Fraudulent Misrepresentation relate to the alleged securitization of the Mortgage, which, again, is unrelated to the origination of the mortgage cannot be the basis for a counterclaim in a mortgage foreclosure action. See Beneficial Consumer Disc. Co. v. Hoffman, 79 Pa. D. & C.4th 496, 503-04 (Pa. Com. Pl. Ct. 2006) (Rule 1148 barred defendant's counterclaims for, inter alia, breach of contract, fraudulent representation, and violation of the UTPCPL where they arose or occurred after the creation of the mortgage and were unrelated to the actual creation of the security interest). Even in Defendant's half-hearted attempted to amend the allegations in her filing, Defendant fails to assert allegations relating to the origination of the mortgage. First, in an attempt to confuse the timing Defendant asserts that "immediately or within days of the Closing, SIB transferred Defendant's mortgage loan to an affiliate or third party." Amend. Counterclaims ¶ 17. Despite Defendant's use of the term "immediately," this does not relate to the origination of the Mortgage. Further, Defendant's allegation that the funds used at closing "came from investment dollars generated by the sale of interests in one or more MBS Trusts, in the form of Mortgaged Backed Securities ..." is simply an end -run attack on securitization which is not permitted under the law. Additionally, these transactions do not relate to the origination of the Mortgage. -8 Defendant's argument concerning Plaintiffs failure to comply with Housing and Urban Development ("HUD") servicing requirements also does not relate to the Mortgage's origination. In fact, Defendant specifically claims that following the Default, Plaintiff failed to follow special servicing requirements required by HUD. Amend. Counterclaims at ¶¶ 106-119. This is clearly unrelated to the origination, as it concerns Defendant's subsequent Default. Mellon Bank, 406 A.2d at 1060 n.6 ("the counterclaims appellant seeks to assert are remedial; they arose once the mortgage was in default, but were not part of, or incident to, the creation of the mortgage itself'). Finally, Defendant allegations that Plaintiff did not engage in loss mitigation efforts and/or wrongfully denied Defendant's modification application cannot possibly relate to the creation of the Mortgage. See, e.g., Bank of Am., N.A. v. Howard, 2014 WL 1335586, *3 (Pa. Corn. Pl. Ct. Feb. 28, 2014) (affirming dismissal of counterclaims and finding that "[a]ny claim regarding a loan modification did not and could not arise incident to the creation of the mortgage"). Thus, each of these Counterclaims arose, if ever, well after and from events unrelated to the creation of the Mortgage. Accordingly, Plaintiffs Preliminary Objections should be sustained, and the Amended Counterclaims should be dismissed. C. Counterclaims Seeking Money Damages Are Forbidden In Foreclosure Actions. A defendant in a foreclosure case cannot file a counterclaim seeking to enforce a personal liability because the action is an in rem proceeding. Even on her second attempt Defendant's Amended Counterclaims impermissibly seek to do just that. Thus, the Court should sustain Plaintiffs Preliminary Objections pursuant to Pa. R. Civ. P. 1028(a)(2) and dismiss the Amended Counterclaims in their entirety. An action in mortgage foreclosure is an in rem proceeding, the purpose of which is to secure a judicial sale of the mortgaged property. Pa. R. Civ. P. 1141; Green Tree Consumer 9 Discount Co. v. Newton, 909 A.2d 811 (Pa. Super. Ct. 2006); Union Nat'l Bank of Little Rock v. Cobbs, 567 A.2d 719 (Pa. Super. Ct. 1989) (citing Fleet Real Estate Funding Corp. v. Smith, 530 A.2d 919 (Pa. Super. Ct. 1987)). Thus, Rule 1141 clearly states that a foreclosure action "shall not include an action to enforce a personal liability." Pa. R. Civ. P. 1141(a) (emphasis added). Against this backdrop, the Superior Court has recognized that a mortgage foreclosure action, as an action in rem, does not allow either party to pursue an action in personam, such as an action for damages. See N.Y. Guardian Mortg. Corp. v. Dietzel, 524 A.2d 951, 953 (Pa. Super. Ct. 1987) (TILA counterclaim was incompatible with the foreclosure proceeding because the TILA claim was in personam in nature, whereas the foreclosure action was strictly in rem); see also Rocco v. J.P. Morgan Chase Bank, 255 Fed. App'x. 638, 643 (3d Cir. 2007) ("Claims for money damages, including recoupment claims, on the other hand, cannot be brought in a foreclosure action."); Birchall v. Countrywide Home Loans, Inc., No. 08-2447, 2009 WL 3822201, at *6 (E.D. Pa. Nov. 12, 2009) ("a mortgage foreclosure action, as an action in rem, does not allow either party to pursue an action in personam, such as an action for damages."); Wells Fargo Bank v. Cruz, No. 2844, 2010 Phila. Ct. Com. Pl. LEXIS 22, at *3 (Feb. 3, 2010) ("[I)t is impermissible to assert a claim for monetary damages in a mortgage foreclosure action."). Defendant's Amended Counterclaims I, II, III and IV each request in personam relief from Plaintiff. See Amended Counterclaims at "Wherefore" clauses following ¶¶131, 139, 142, 155. Specifically, Defendant seeks civil penalties with regard to Defendant's claims for equitable relief; treble damages with regard to Defendant's UTPCPL claim; "an amount not yet quantified" and such amounts to be proven at trial concerning Defendant's breach of contract; and "return of any money," treble damages, and "actual damages" regarding Defendant's - 10 - fraudulent misrepresentation Amended Counterclaim. Given the foregoing authorities, the causes of action in the. Amended Counterclaim are not properly asserted in this foreclosure action. Simply stated, the law and the rules do not permit counterclaims in a mortgage foreclosure action that seek money damages. Dietzel, 524 A.2d at 953; Pa. R. Civ. P. 1141(a). Because Defendant's Amended Counterclaims I, II, III and IV fail to comply with the law and rules of court and are legally insufficient on their face, these Counts should be dismissed in their entirety, pursuant to Pa. R. Civ. P. 1028(a)(2). D. All Of Plaintiff's Claims Are Time -Barred On Their Face And Should Be Dismissed. Even if the Counterclaims arose out of the creation of the Mortgage, which they did not, Defendant executed the Mortgage more than 11 years prior to filing this action. Defendant has not set forth any facts as to why the limitations period does not apply or should be tolled. Thus, Defendant's Amended Counterclaims, just like those filed initially, are time-barred under even the longest of the applicable limitations periods. Although the statute of limitations is to be pleaded as new matter, it may be raised in preliminary objections where "the defense is clear on the face of the pleadings[.]" Petsinger v. Pa. Dep't. of Labor & Indus., 988 A.2d 748, 758 (Pa. Commw. Ct. 2010) (citation omitted). Here, each of Defendant's Counterclaims is barred by the applicable statute of limitations. Defendant's Declaratory and Injunctive Relief and Equitable Relief claims are subject to the four-year statute of limitations of 42 Pa.C.S.A. 5225(8). The UTPCPL claim is subject to a six-year statute of limitations. See, e.g., Gabriel v. O'Hara, 534 A.2d 488, 495 (Pa. Super. Ct. 1987). See also 42 Pa.C.S.A. § 5527(6) ("Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of -11- limitation by section 5531 (relating to no limitation) must be commenced within six years."). Defendant's Breach of Contract claim is subject to a four-year statute of limitations, see 42 Pa.C.S.A § 5525, and the Fraudulent Misrepresentation claim is subject to a two-year statute of limitations. See 42 Pa.C.S.A. § 5524(7) (a claim "founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud," "must be commenced within two years"). As noted, Defendant's Mortgage was executed on April 24, 2003. Any claims related to the origination of the Mortgage would have accrued on that date. However, Defendant did not file her Counterclaims until September 12, 2014 — more than eleven years later and nearly twice the longest limitations period for any of her claims. Accordingly, the causes of action set forth in Defendant's filing are time-barred on the face of the pleading and the Court should sustain Plaintiff's Preliminary Objections and dismiss with prejudice all causes of action asserted in the Amended Counterclaims. E. All Of The Counterclaims Fail Because Plaintiff's "Split -Note" And Securitization Allegations Cannot Support These Claims As A Matter Of Law. Each of Defendant's Amended Counterclaims incorporates by reference the allegations contained in Defendant's Amended New Matter and the General Allegations contained in Paragraphs 93-119 of the Amended Counterclaims. See Amend. New Matter ¶¶ 11- 43; General Allegations ¶¶ 93-119; see also ¶¶ 120, 132, 140, 147, 156. Essentially, Defendant's "split -note" and/or "securitization" allegations aver that the Note named SIB as the Lender, but the "Security Agreement" was provided to MERS solely as nominee for the Lender. Amend. New Matter ¶¶ 12, 37. Defendant further alleges that Note was allocated to a new corporation and pledged to owners of asset backed securities, the certificates of which were then sold to investors. See Amend. New Matter ¶¶ 37-49. Defendant alleges that the separation of the Note from the deed - 12 - of trust has resulted in Plaintiff's lack of standing to bring its Foreclosure Complaint against Defendant. Id. ¶ 62-68.2 Courts from around the country have routinely rejected Defendant's exact argument that that securitization of a note "splits" it from the mortgage and renders both invalid. As one court has explained: The rule is well-settled that ... the mortgagee has a lien on the land to secure the debt. It has never been necessary that the mortgage should be given directly to the beneficiaries. The security is always made in trust to secure obligations and the trust and the beneficial interest need not be in the same hands .... The choice of a mortgagee is a matter of convenience. Residential Funding Co., L.L.C. v. Saurman, 490 Mich. 909, 909-10, 805 N.W.2d 183, 183-84 (Mich. 2011). See also, In re Walker, 466 B.R. 271, 285 (Bankr. E.D. Pa. 2012) ("Whatever the context, it appears that a judicial consensus has developed holding that a borrower lacks standing to [ ] challenge the validity of a mortgage securitization ....."); Wiley v. Deutsche Bank Nat'l Trust Co., No. 1251039, 2013 WL 4779686, at *1 (5th Cir. Sept. 6, 2013) (rejecting "the murky legal theory, and mortgage defaulters' claim du jour, known as the `split -the -note' theory"); Brazell v. Waite, 525 Fed. Appx. 878, 884 (10th Cir. June 4, 2013) (rejecting as "meritless" "the split note theory [ ] that because the promissory note and the trust deed are not held by the same party, the trust deed is a nullity and of no further force and effect.") (internal quotations omitted); Yuille v. Am. Home Mortgage Servs., Inc., No. 10-2564, 2012 U.S. App. LEXIS 10797, at *7-8 (6th Cir. May 29, 2012) (rejecting argument that a mortgage that "separates the promissory note from the mortgage and allows the lender to trade the Note separately from the mortgage is unenforceable") (internal quotations omitted); PHH Mortgage Corp. v. Garner, 2013 WL 2 Paragraph 50 states, in part: "In order for this Plaintiff to maintain legal standing in connection with the subject loan transaction they are required to show the entire chain of title of the note and the entire chain of title of the mortgage." - 13 - 2459868, at *6 (N.J. Super. Ct. App. Div. June 10, 2013) (rejecting "split the note theory" that because the mortgagee and holder of the note were different entities "the note and the mortgage were separated, such that no one had the authority to enforce the obligation at the time the foreclosure complaint was filed"); Marrocco v. Chase Bank, N.A., No. 2:12-cv-10605, 2012 WL 3061031, at *3 (E.D. Mich. July 26, 2012) ("The Court concludes that the validity of the mortgage was unaffected by the separation of the note and mortgage."). In short, Defendant's "split -note" and securitization theories cannot, as a matter of law, support any of Defendant's claims for relief. Accordingly, since each of Defendant's claims rely on these allegations, all of the Amended Counterclaims fails as a matter of law. F. Defendant's Counterclaims for Fraudulent Misrepresentation and Violations of the UTPCPL Fail Because They are Not Averred With Particularity, As Required By Rule 1019(b). Defendant's Fraudulent Misrepresentation Amended Counterclaim is insufficiently specific and otherwise fails to state a claim upon which relief can be granted. The Court should sustain Plaintiff's Preliminary Objections on this ground. Under the Pennsylvania Rules of Civil Procedure, "[a]verments of fraud or mistake shall be averred with particularity." Pa. R. Civ. P. 1019(b). A plaintiff bringing an action based in fraud must "alleg[e] with specificity the acts that he claims are fraudulent." Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 526 Pa. 541, 553, 587 A.2d 1346, 1352 (1991) (emphasis in original). Failure to meet this bare minimum renders a fraud claim insufficient as a matter of law. See Youndt v. First Nat'l Bank of Port Allegany, 868 A.2d 539, 545 (Pa. Super. Ct. 2005). This heightened pleading standard applies not only to claims for fraudulent misrepresentation, but also to claims for fraudulent concealment and for violations of Pennsylvania's consumer fraud statute, the UTPCPL. See id. at 544-45 (applying Pa. R. Civ. P. 1019(b) to claim for fraudulent misrepresentation); Lindstrom v. Pennswood Village, 612 A.2d - 14 - 1048, 1052 (Pa. Super. Ct. 1992) (applying Pa. R. Civ. P. 1019(b) to claim for violation of the UTPCPL); Muhammad, 526 Pa. at 554, 587 A.2d at 1352 (applying Pa. R. Civ. P. 1019(b) to claim for fraudulent concealment). Thus, under Pa. R. Civ. P. 1028(a)(3), the Court may dismiss a pleading for insufficient specificity. "The purpose of the pleadings is to place the defendants on notice of the claims upon which they will have to defend." Carlson v. Cmty. Ambulance Servs., Inc., 824 A.2d 1228, 1232 (Pa. Super. Ct. 2003) (quoting Yacoub v. Lehigh Valley Med., 805 A.2d 579, 588 (Pa. Super. Ct. 2002)). "A complaint must give the defendants fair notice of the plaintiffs claims and a summary of the material facts that support those claims." Id. (quoting Yacoub, 805 A.2d at 588). A complaint is only sufficiently specific if it provides the defendant "with enough facts to enable it to frame a proper answer and prepare a defense." Boyd v. Rockwood Area Sch. Dist., 907 A.2d 1157, 1168 n.19 (Pa. Commw. Ct. 2006) (quoting Commonwealth ex rel. Milk Mktg. Bd. v. Sunnybrook Dairies Inc., 370 A.2d 765, 768 (Pa. Commw. 1977)). Further, in accordance with Pa. R. Civ. P. 1028(a)(4), the Court may dismiss a pleading for "legal insufficiency." See Pa. R. Civ. P. 1028(a)(4). Where it "appear[s] with certainty that the law would not permit recovery by the plaintiff upon the facts averred," preliminary objections challenging the legal sufficiency of a pleading should be sustained. Goodman v. PPG Indus., Inc., 849 A.2d 1239, 1243 (Pa. Super. Ct. 2004). In ruling on a demurrer under Pa. R. Civ. P. 1028(a)(4), "the court must consider all of the well -pleaded material facts set forth in the petition and all reasonable inferences drawn from those facts." Allegheny County Sportsmen's League v. Rendell, 580 Pa. 149, 154, 860 A.2d 10, 14 (2004). The Court, however, "need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, - 15 - or expressions of opinion." Myers v. Ridge, 712 A.2d 791, 794 (Pa. Commw. Ct. 1998); S. Union Twp. v. Commonwealth, 839 A.2d 1179, 1185 n.8 (Pa. Commw. Ct. 2003). Here, Defendant's Fraudulent Misrepresentation claim is so devoid of specific facts that Plaintiff is denied a reasonable opportunity to respond. Further, even on Defendant's second attempt she fails to insert new facts which would satisfy particularity. For example, Defendant avers that "Plaintiff's predecessors knowingly and intentionally concealed material information from Defendant which is required...to be disclosed...." See Amended Counterclaims at ¶ 151. Defendant fails to identify Plaintiff's putative "predecessors," fails to identify the subject matter of any "material information," the location or the date of the alleged misrepresentations. Further, with regard to the UTPCPL Counterclaim, Defendant has failed to point to any misrepresentations made by Plaintiff or any interaction whatsoever with representatives of Plaintiff, let alone do so with any particularity. Once again, Defendant adds one paragraph to her amended Counterclaims alleging that she was "tricked into signing the documents." Amend. Counterclaims at ¶ 16. This clearly fails to meet the particularity requirements for claims sounding in fraud. Therefore, Plaintiff cannot establish liability against Plaintiff under the UTPCPL.3 These conclusory allegations are not sufficient under the Pennsylvania pleading rules requiring enough facts to enable the responding party to frame a proper answer and prepare a defense. Accordingly, Defendant's claim for Fraudulent Misrepresentation should be dismissed. 3 "Additionally, there can be no assignee liability under the UTPCPL." Perkins v. Beltway Capital, LLC, No. 3771, 2013 WL 8697955 (Pa. Corn. Pl. Ct. Apr. 16, 2013) (citing WM Specialty Mortgage v. Shuttleworth, 82 Pa.D. & C.4th 129 (2007) (dismissing homeowner's counterclaim for violations of the UTPCPL in a foreclosure action because the alleged violations were committed by the original lender not the foreclosing assignee)). - 16- G. Defendant's Counterclaim for Breach of Contract Should Be Dismissed Because She Failed to Attach The Contract As Required By Rule 1019(i). Defendant's Breach of Contract Counterclaim is deficient as a matter of law because it fails to attach the writing to which it relates as required by Pa. R. Civ. P. 1019(i). Commonwealth Fin. Sys. v. Hartzell, No. 10390, 17 Pa. D. & C. 5th 176, 179-80 (Pa. Corn. Pl. Ct. Oct. 19, 2010) ("Pa.R.C.P. No. 1019(i) states, 'when any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing."'); Citibank (S. Dakota) N.A. v. Strunk, 7285 CV 2009, 2010 WL 2914573 (Pa. Corn. Pl. Ct. May 3, 2010) ("Pa.R.C.P. 1019(i) provides that a copy must be attached to the complaint."). As Defendant failed to attach any writing or material part thereof, even following her "amendments", Defendant's Claim of Breach of Contract fails under Rule 1019(i). V. RELIEF For all of the foregoing reasons, Plaintiff respectfully requests that this Court sustain its Preliminary Objections and dismiss Defendant's Amended Counterclaims with prejudice in their entirety. Respectfully submitted, RE >E 1I1 SM Molly Q. Campbell Identification No. 311289 Three Logan Square Suite 3100 1.717 Arch Street Philadelphia, PA 19103 DATED: November 21, 2014 Attorneys for Plaintiff - 17 - ORIGNAL 1-vltrY-Dove-�3NOTE Multistate AP# SIB1000237498 J April 24. 2003 PHA Case No. 441-7154858-703 ALLENVIEW DRIVE.MECHANICSBURG.PA 17055 [Property Address] 1. PARTIES "Borrower" means each person signing at the end of this Note, and the person's successors and assigns. "Lender" means SIB MORTGAGE CORP.. A NEW JERSEY CORPORATION and its successors and assigns. 2. BORROWER'S PROMISE TO PAY; INTEREST In return for a loan received from Lender, Borrower promises to pay the principal sum of Ninety Three Thousand Nine Hundred Forty One and no/100 Dollars (U.S. $ 93.941.00 ), plus interest, to the order of Lender. Interest will be charged on unpaid principal, froth the date of disbursement of the loan proceeds by Lender, at the rate of Si X and One / Quarter pe4cent ( 6.2500 %) per year until the full amount of principal has been paid. -3. PROMISE TO PAY SECURED Borrower's promise to pay is secured by a mortgage, deed of trust or similar security instrument that is dated the same date as this Note and called the "Security Instrument." The Security Instrument protects the Lender from losses which might result if Borrower defaults under this Note. 4. MANNER OF PAYMENT (A) Time Borrower shall make a payment of principal and interest to Lender on the first day of each month beginning on June 1 2003 . Any principal and interest remaining on the first day of May 2033 , will be due on that date, which is called the "Maturity Date." (B) Place Payment shall be made at 1250 ROUTE 28. BRANCHBURG. NJ 08876 or at such place as Lender may designate in writing by notice to Borrower. (C) Amount Each monthly payment of principal and interest will be in the amount of U.S. $ 578.42 . This amount will be part of a larger monthly payment required by the Security Instrument, that shall be applied to principal, interest and other items in the order described in the Security Instrument. (D) Allonge to this Note for payment adjustments If an allonge providing for payment adjustments is executed by Borrower together with this Note, the covenants of the allonge shall be incorporated into and shall amend and supplement the covenants of this Note as if the allonge were a part of this Note. [Check applicable box] nGraduated Payment Allonge 1 (Growing Equity Allonge [ Other [specify] 5. BORROWER'S RIGHT TO PREPAY Borrower has the right to pay the debt evidenced by this Note, in whole or in part, without charge or penalty, on the first day of any month. Lender shall accept prepayment on other days provided that Borrower pays interest on the amount prepaid for the remainder of the month to the extent required by Lender and permitted by regulations of the Secretary. If Borrower makes a partial prepayment, there will be no changes in the due date or in the amount of the monthly payment unless Lender agrees in writing to those changes. FHA Multistate Fixed Rate Note - 10/95 -1R c0210) VMP MORTGAGE FORMS • t8001621.7291 p ' Pogo 1 0/ 2 MW 10/02 Initlals: 1111 111 1111 111 111 Ippograrr 11 11111 r. S S 6. BORROWER'S FAILURE TO PAY (A) Late Charge for Overdue Payments If Lender has not received the full monthly payment required by the Security Instrument, as described in Paragraph 4(C) of this Note, by the end of fifteen calendar days after the payment is due, Lender may collect a late charge in the amount of Four percent ( 4. 0000 %) of the overdue amount of each payment. (B) Default If Borrower defaults by failing to pay in full any monthly payment, then Lender may, except as limited by regulations of the Secretary in the case of payment defaults, require immediate payment in full of the principal balance remaining due and all accrued interest. Lender may choose not to exercise this option without waiving its rights in the event of any subsequent default. In many circumstances regulations issued by the Secretary will limit Lender's rights to require immediate payment in full in the case of payment defaults. This Note does not authorize acceleration when not permitted by HUD regulations. As used in this Note, "Secretary" means the Secretary of Housing and Urban Development or his or her designee. (C) Payment of Costs and Expenses If Lender has required immediate payment in full, as described above, Lender may require Borrower to pay costs and expenses including reasonable and customary attorneys' fees for enforcing this Note to the extent not prohibited by applicable law. Such fees and costs shall bear interest from the date of disbursement at the same rate as the principal of this Note. 7. WAIVERS Borrower and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require Lender to demand payment of amounts due. "Notice of dishonor" means the right to require Lender to give notice to other persons that amounts due have not been paid. 8. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to Borrower under this Note will be given by delivering it or by mailing it by first class mail to Borrower at the property address above or at a different address if Borrower has given Lender a notice of Borrower's different address. Any notice that must be given to Lender under this Note will be given by first class mail to Lender at the address stated in Paragraph 4(B) or at a different address if Borrower is given a notice of that different address. 9. OBLIGATIONS OF PERSONS UNDER I't11S NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. Lender may enforce its rights under this Note against each person individually or against all signatories together. Any one person signing this Note may be required to pay all of the amounts owed under this Note. BY SIGNINNG BELOW, Borrower accepts and agrees to the terms and covenants contained in this Note. (Seal) (Seal) DE ORAH L GRAHAM -Borrower . -Borrower (Seal) (Seal) -Borrower -Borrower (Seal) (Seal) -Borrower -Borrower (Seal) (Seal) -Borrower -Borrower (�®-1R )0210) Pogo 2 0! Pay to the Order of Pay to the Order of Countrywide Home Loans Servicing LP Without recourse without recourse Countrywide Home Loans Inc. Countrywide Home Loans Servicing LP 9A/26t Name BRIEL DURAN, ASST. SEC. NameG L DURAN, ASST. S f ' Y TO THE ORDER OF CO'.I: IRT/ rIg HOME LING. aE CORP. SUBORDINATION AGREEMENT THIS SUBORDINATION AGREEMENT entered into between Household Realty Corporation, herein known as 'SUBORDINATING LENDER', and S.I.B. MORTGAGE CORP., herein known as 'NEW LENDER'. Subordinating Lender is the holder of a Mortgage from Deborah L. Graham, herein known as 'BORROWER', which was recorded on 6/26/2002, at Liber #1763 and Folio #629, Cumberland Recorders office, State of Pennsylvania, in the original amount of $10,000.00. Borrower has secured a loan from New Lender in the amount of $94,067 and has requested that Subordinating Lender subordinate Subordinating Lender's Mortgage to the new lien of the New Lender. THEREFORE, Subordinating Lender, for a valuable consideration, the receipt of which is hereby acknowledged, does hereby subordinate its Mortgage to the mortgage lien of New Lender, dated Hprik '23-1 , 20 0-3_, and recorded in Official Records Book/Libor/Index-4i- 2J(9 1 "4- , Page/Folio Cumberland, State of Pennsylvania. , cr1 L.1-1 U-1 s: c=. • cm r- - C=D L.3-3 =-1 Household Realty Corporation By: r1A-41 Lc /2c7/inc9.3 Print Witness Name ])la PrVAlowiA.•• Print Witness Name •1•••'."- 000614746 GRAHAM 1);_ STATE OF ---1" 11 Y'L 11111111111111111111111111111111111111111111111111111111111111111111 COUNTY OF a,uGr---ft...-- 610 029094502 SUB 001 001 The foregoing Sub rdination Agreementwo acknowledged before me on this -KA day of rt./ 20 HousphoWLRealty Corporation, by its V/c--rfe,Stafeigr , on its behalf. Official Seal Terrertoa .1 Heady Notary Public State of 1111n610 Pty CornmIssignpplfpy0W05/07.. Notary Public 1 i-F?rrence My Commission Expires . . BOOK 703 rAcc3805 Return Toz SID Mortgage Corp., 000 Research Court, Suite 160, Rockville, MD 20850 t �R EXHIBIT A ALL THAT CERTAIN tract or parcel of land and premises, situate, lying and being in the Township of Upper Allen in the County of Cumberland and Commonwealth of Pennsylvania being known as Lot 4G part of Townhouse Plot No. 4 as shown on the final Subdivision Plan of Allenview, Stage II, Section B, Sheet 2, dated April 12, 1979 and recorded in Plan Book 36, Page 47, as follows, to wit: BEGINNING at the southeast corner of Lot 4-F and going along a line North 36 degrees 08 minutes West a distance of 90.46 feet to a point; thence turning right along a line north 53 degrees 52 minutes East a distance of 20.3 feet to a point; thence turning right along a line South 36 degrees 08 minutes East a distance of 89.93 feet to a point on the northern right of way line of Allenview Drive; thence turning right along said right of way line South 52 degrees 22 minutes 39 seconds West a distance of 20.31 feet to the point of beginning. 42-28-2423-242 EXCEPTING THEREOUT AND THEREFROM (IF ANY) THE PREMISES AS MORE FULLY DESCRIBED IN THE FOLLOWING DEED: NONE PIT123-14288 I Certify this to be recorded In Cumberland County PA v "4... .,-e Recorder of Deeds BOOK 703 PAGE3806 Parcel Number: P. ZIESLEa 07t0EP, Or DEED;') ,1.3E.REA►10 COUliYY 3 f��`� Z FS11139 AP# SIB1000237498 LN# 1000237498 [Space Above Yids Line For Recording Data] Commonwealth of Pennsylvania MORTGAGE FHA Cue No. 441-7154858-703 MIN 1000273-1000237498-1 THIS MORTGAGE ("Security Instrument") is given on April 24, 2003 The Mortgagor is DEBORAH L GRAHAM, UNMARRIED ("Borrower"). This Security Instrument is given to Mortgage Electronic Registration Systems, Inc. ("MEAS"), (solely as nominee for Lender, as hereinafter defined, and Lender's successors and assigns), as mortgagee. MERS is organized and existing under the laws of Delaware, and has an address and telephone number of P.O. Box 2026, Flint, MI 48501-2026, tel. (888) 679-MERS. SIB MORTGAGE CORP., A NEW JERSEY CORPORATION ("Lender") is organized and existing under the laws of THE STATE OF NEW JERSEY , and has anaddress of 1250 ROUTE 28, BRANCHBURG, NJ 08876 . Borrower owes Lender the principal sum of Ninety Three Thousand Nine Hundred Forty One and no/100 Dollars (U.S. $ 93.941.00 ). FHA Pennsylvania Mortgage with MEAS - 4/96 • 4:40NWA) to2o0) Amended ,/pa Pagel o1 10 MW OB/02. INtk4: VMP MORTGAGE FORMS. 15001521- 8) BK 1809 PG 2738 11111 01 "2-.Jz This debt is evidenced by Borrower's note dated the same date as this Security Instrument ("Note"), which provides for monthly payments, with the full debt, if not paid earlier, due and payable on May 1. 2033 . This Security Instrument secures to Lender: (a) the repayment of the debt evidenced by the Note, with interest, and all renewals, extensions and modifications of the Note; (b) the payment of all other sums, with interest, advanced under paragraph 7 to protect the security of this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS, the following described property located in CUMBERLAND County, Pennsylvania: SEE ATTACHED LEGAL DESCRIPTION qo - 0>" which has the address of- 0 --WART}+ ALLENVIEW DRIVE [Street] MECHANICSBURG [City), Pennsylvania 17055 (zip Code) ("Property Address"); TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the "Property." Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument; but, if necessary to comply with law or custom, MERS, (as nominee for Lender and Lender's successors and assigns), has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing or canceling this Security Instrument. BORROWER COVENANTS that Borrower is lawfully seized of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. ®®4N(PA) (0206) Page 2 of 10 BK 1809PG2739 Initials: -11.10),."... Borrower and Lender covenant and agree as follows: UNIFORM COVENANTS. 1. Payment of Principal, Interest and Late Charge. Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and late charges due under the Note. 2. Monthly Payment of Taxes, Insurance and Other Charges. Borrower shall include in each monthly payment, together with the principal and interest as set forth in the Note and any late charges, a sum for (a) taxes and special assessments levied or to be levied against the Property, (b) leasehold payments or ground rents on the Property, and (c) premiums for insurance required under paragraph 4. In any year in which the Lender must pay a mortgage insurance premium to the Secretary of Housing and Urban Development ("Secretary"), or in any year in which such premium would have been required if Lender still held the Security Instrument, each monthly payment shall also include either: (i) a sum for the annual mortgage insurance premium to be paid by Lender to the Secretary, or (ii) a monthly charge instead of a mortgage insurance premium if this Security Instrument is held by the Secretary, in a reasonable amount to be determined by the Secretary. Except for the monthly charge by the Secretary, these items are called "Escrow Items" and the sums paid to Lender are called "Escrow Funds." Lender may, at any time, collect and hold amounts for Escrow Items in an aggregate amount not to exceed the maximum amount that may be required for Borrower's escrow account under the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. Section 2601 et seq. and implementing regulations, 24 CFR Part 3500, as they may be amended from time to time ("RESPA"), except that the cushion or reserve permitted by RESPA for unanticipated disbursements or disbursements before the Borrower's payments are available in the account may not be based on amounts due for the mortgage insurance premium. If the amounts held by Lender for Escrow Items exceed the amounts permitted to be held by RESPA, Lender shall account to Borrower for the excess funds as required by RESPA. If the amounts of funds held by Lender at any time are not sufficient to pay the Escrow Items when due, Lender may notify the Borrower and require Borrower to make up the shortage as permitted by RESPA. The Escrow Funds are pledged as additional security for all sums secured by this Security Instrument. If Borrower tenders to Lender the full payment of all such sums, Borrower's account shall be credited with the balance remaining for all installment items (a), (b), and (c) and any mortgage insurance premium installment that Lender has not become obligated to pay to the Secretary, and Lender shall promptly refund any excess funds to Borrower. Immediately prior to a foreclosure sale of the Property or its acquisition by Lender, Borrower's account shall be credited with any balance remaining for all installments for items (a), (b), and (c). 3. Application of Payments. All payments under paragraphs 1 and 2 shall be applied by Lender as follows: First, to the mortgage insurance premium to be paid by Lender to the Secretary or to the monthly charge by the Secretary instead of the monthly mortgage insurance premium; Second to any taxes, special assessments, leasehold payments or ground rents, and fire, flood and other hazard insurance premiums, as required; Third, to interest due under the Note; Fourth, to amortization of the principal of the Note; and Fifth, to late charges due under the Note. 4. Fire, Flood and Other Hazard Insurance. Borrower shall insure all improvements on the Property, whether now in existence or subsequently erected, against any hazards, casualties, and contingencies, including fire, for which Lender requires insurance. This insurance shall be maintained in .4N(PA) 10208) 81(1809PG2740 Pepe 3 of 10 the amounts and for the periods that Lender requires. Borrower shall also insure all improvements on the Property, whether now in existence or subsequently erected, against loss by floods to the extent required by the Secretary. All insurance shall be carried with companies approved by Lender. The insurance policies and any renewals shall be held by Lender and shall include loss payable clauses in favor of, and in a form acceptable to, Lender. In the event of loss, Borrower shall give Lender immediate notice by mail. Lender may make proof of loss if not made promptly by Borrower. Each insurance company concerned is hereby authorized and directed to make payment for such loss directly to Lender, instead of to Borrower and to Lender jointly. All or any part of the insurance proceeds may be applied by Lender, at its option, either (a) to the reduction of the indebtedness under the Note and this Security Instrument, first to any delinquent amounts applied in the order in paragraph 3, and then to prepayment of principal, or (b) to the restoration or repair of the damaged Property. Any application of the proceeds to the principal shall not extend or postpone the due date of the monthly payments which are referred to in paragraph 2, or change the amount of such payments. Any excess insurance proceeds over an amount required to pay all outstanding indebtedness under the Note and this Security Instrument shall be paid to the entity legally entitled thereto. In the event of foreclosure of this Security Instrument or other transfer of title to the Property that extinguishes the indebtedness, all right, title and interest of Borrower in and to insurance policies in force shall pass to the purchaser. 5. Occupancy, Preservation, Maintenance and Protection of the Property; Borrower's Loan Application; Leaseholds. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within sixty days after the execution of this Security Instrument (or within sixty days of a later sale or transfer of the Property) and shall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy, unless Lender determines that requirement will cause undue hardship for Borrower, or unless extenuating circumstances exist which are beyond Borrower's control. Borrower shall notify Lender of any extenuating circumstances. Borrower shall not commit waste or destroy, damage or substantially change the Property or allow the Property to deteriorate, reasonable wear and tear excepted. Lender may inspect the Property if the Property is vacant or abandoned or the loan is in default. Lender may take reasonable action to protect and preserve such vacant or abandoned Property. Borrower shall also be in default if Borrower, during the loan application process, gave materially false or inaccurate information or statements to Lender (or failed to provide Lender with any material information) in connection with the loan evidenced by the Note, including, but not limited to, representations concerning Borrower's occupancy of the Property as a principal residence. If this Security Instrument is on a leasehold, Borrower shall comply with the provisions of the lease. If Borrower acquires fee title to the Property, the leasehold and fee title shall not be merged unless Lender agrees to the merger in writing. 6. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of any part of the Property, or for conveyance in place of condemnation, are hereby assigned and shall be paid to Lender to the extent of the full amount of the indebtedness that remains unpaid under the Note and this Security Instrument. Lender shall apply such proceeds to the reduction of the indebtedness under the Note and this Security Instrument, first to any delinquent amounts applied in the order provided in paragraph 3, and then to prepayment of principal. Any application of the proceeds to the principal shall not extend or postpone the due date of the monthly payments, which are referred to in paragraph 2, or change the amount of such payments. Any excess proceeds over an amount required to pay all outstanding indebtedness under the Note and this Secup Instrument shall be paid to the entity legally entitled thereto. ®.4N(PA) loam BK 1 809PG2741 Page 4 of 10 M11elc 7. Charges to Borrower and Protection of Lender's Rights in the Property. Borrower shall pay all governmental or municipal charges, fines and impositions that are not included in paragraph 2. Borrower shall pay these obligations on time directly to the entity which is owed the payment. If failure to pay would adversely affect Lender's interest in the Property, upon Lender's request Borrower shall promptly furnish to Lender receipts evidencing these payments. If Borrower fails to make these payments or the payments required by paragraph 2, or fails to perform any other covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property (such as a proceeding in bankruptcy, for condemnation or to enforce laws or regulations), then Lender may do and pay whatever is necessary to protect the value of the Property and Lender's rights in the Property, including payment of taxes, hazard insurance and other items mentioned in paragraph 2. Any amounts disbursed by Lender under this paragraph shall become an additional debt of Borrower and be secured by this Security Instrument. These amounts shall bear interest from the date of disbursement, at the Note rate, and at the option of Lender, shall be immediately due and payable. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower: (a) agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender; (b) contests in good faith the lien by, or defends against enforcement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien; or (c) secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which may attain priority over this Security Instrument, Lender may give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set forth above within 10 days of the giving of notice. 8. Fees. Lender may collect fees and charges authorized by the Secretary. 9. Grounds for Acceleration of Debt. (a) Default. Lender may, except as limited by regulations issued by the Secretary, in the case of payment defaults, require immediate payment in full of all sums secured by this Security Instrument if: (i) Borrower defaults by failing to pay in full any monthly payment required by this Security Instrument prior to or on the due date of the next monthly payment, or (ii) Borrower defaults by failing, for a period of thirty days, to perform any other obligations contained in this Security Instrument. (b) Sale Without Credit Approval. Lender shall, if permitted by applicable law (including Section 341(d) of the Gam -St. Germain Depository Institutions Act of 1982, 12 U.S.C. 1701j -3(d)) and with the prior approval of the Secretary, require immediate payment in full of all sums secured by this Security Instrument if: (i) All or part of the Property, or a beneficial interest in a trust owning all or part of the Property, is sold or otherwise transferred (other than by devise or descent), and (ii) The Property is not occupied by the purchaser or grantee as his or her principal residence, or the purchaser or grantee does so occupy the Property but his or her credit has not been approved in accordance with the requirements of the Secretary. (c) No Waiver. If circumstances occur that would permit Lender to require immediate payment in full, but Lender does not require such payments, Lender does not waive its rights with respect to subsequent events. -4N(PA) 102061 BK 1809PG2742 Pepe 6 of 10 iniueie: (d) Regulations of HUD Secretary. In many circumstances regulations issued by the Secretary will limit Lender's rights, in the case of payment defaults, to require immediate payment in full and foreclose if not paid. This Security Instrument does not authorize acceleration or foreclosure if not permitted by regulations of the Secretary. (e) Mortgage Not Insured. Borrower agrees that if this Security Instrument and the Note are not determined to be eligible for insurance under the National Housing Act within 60 days from the date hereof, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. A written statement of any authorized agent of the Secretary dated subsequent to 60 days from the date hereof, declining to insure this Security Instrument and the Note, shall be deemed conclusive proof of such ineligibility. Notwithstanding the foregoing, this option may not be exercised by Lender when the unavailability of insurance is solely due to Lender's failure to remit a mortgage insurance premium to the Secretary. 10. Reinstatement. Borrower has a right to be reinstated if Lender has required immediate payment in full because of Borrower's failure to pay an amount due under the Note or this Security Instrument. This right applies even after foreclosure proceedings are instituted. To reinstate the Security Instrument, Borrower shall tender in a lump sum all amounts required to bring Borrower's account current including, to the extent they are obligations of Borrower under this Security Instrument, foreclosure costs and reasonable and customary attorneys' fees and expenses properly associated with the foreclosure proceeding. Upon reinstatement by Borrower, this Security Instrument and the obligations that it secures shall remain in effect as if Lender had not required immediate payment in full. However, Lender is not required to permit reinstatement if: (i) Lender has accepted reinstatement after the commencement of foreclosure proceedings within two years immediately preceding the commencement of a current foreclosure proceeding, (ii) reinstatement will preclude foreclosure on different grounds in the future, or (iii) reinstatement will adversely affect the priority of the lien created by this Security Instrument. 11. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time of payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall not operate to release the liability of the original Borrower or Borrower's successor in interest. Lender shall not be required to commence proceedings against any successor in interest or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made by the original Borrower or Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedy shall not be a waiver of or preclude the exercise of any right or remedy. 12. Successors and Assigns Bound; Joint and Several Liability; Co -Signers. The covenants and agreements of this Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the provisions of paragraph 9(b). Borrower's covenants and agreements shall be joint and several. Any Borrower who co-signs this Security Instrument but does not execute the Note: (a) is co-signing this Security Instrument only to mortgage, grant and convey that Borrower's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower may agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without that Borrower's consent. 4NCPA1 (0208) BK 1809PG2743 Pape 6 of 10 Initialsi:j1)"....... : 13. Notices. Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by trailing it by first class mail unless applicable law requires use of another method. The notice shall be directed to the Property Address or any other address Borrower designates by notice to Lender. Any notice to Lender shall be given by first class mail to Lender's address stated herein or any address Lender designates by notice to Borrower. Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph. 14. Governing Law; Severability. This Security Instrument shall be governed by Federal law and the law of the jurisdiction in which the Property is located. In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law, such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision. To this end the provisions of this Security Instrument and the Note are declared to be severable. 15. Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security Instrument. 16. Hazardous Substances. Borrower shall not cause or permit the presence, use, disposal, storage, or release of any Hazardous Substances on or in the Property. Borrower shall not do, nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence, use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Property. Borrower shall promptly give Lender written notice of any investigation. claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority, that any removal or other remediation of any Hazardous Substances affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. As used in this paragraph 16, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental Law and the following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides, volatile solvents, materials containing asbestos or formaldehyde, and radioactive materials. As used in this paragraph 16, "Environmental Law" means federal laws and laws of the jurisdiction where the Property is located that relate to health, safety or environmental protection. NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: 17. Assignment of Rents. Borrower unconditionally assigns and transfers to Lender all the rents and revenues of the Property. Borrower authorizes Lender or Lender's agents to collect the rents and revenues and hereby directs each tenant of the Property to pay the rents to Lender or Lender's agents. However, prior to Lender's notice to Borrower of Borrower's breach of any covenant or agreement in the Security Instrument, Borrower shall collect and receive all rents and revenues of the Property as trustee for the benefit of Lender and Borrower. This assignment of rents constitutes an absolute assignment and not an assignment for additional security only. If Lender gives notice of breach to Borrower: (a) all rents received by Borrower shall be held by Borrower as trustee for benefit of Lender only, to be applied to the sums secured by the Security Instrument; (b) Lender shall be entitled to collect and receive all of the rents of the Property; and (c) each -4NIPA1 ro2061 8K 1809PG2744, Paga 7 01 10 INMIaI1: tenant of the Property shall pay all rents due and unpaid to Lender or Lender's agent on Lender's written demand to the tenant. Borrower has not executed any prior assignment of the rents and has not and will not perform any act that would prevent Lender from exercising its rights under this paragraph 17. Lender shall not be required to enter upon, take control of or maintain the Property before or after giving notice of breach to Borrower. However, Lender or a judicially appointed receiver may do so at any time there is a breach. Any application of rents shall not cure or waive any default or invalidate any other right or remedy of Lender. This assignment of rents of the Property shall terminate when the debt secured by the Security Instrument is paid in full. 18. Foreclosure Procedure. If Lender requires Immediate payment in full under paragraph 9, Lender may foreclose this Security Instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred In pursuing the remedies provided in this paragraph 18, including, but not limited to, attorneys' fees and costs of title evidence. If the Lender's interest in this Security Instrument is held by the Secretary and the Secretary requires immediate payment in full under Paragraph 9, the Secretary may invoke the nonjudiclal power of sale provided in the Single Family Mortgage Foreclosure Act of 1994 ("Act") (12 U.S.C. 3751 er seq.) by requesting a foreclosure commissioner designated under the Act to commence foreclosure and to sell the Property as provided in the Act. Nothing in the preceding sentence shall deprive the Secretary of any rights otherwise available to a Lender under this Paragraph 18 or applicable law. 19. Release. Upon payment of all sums secured by this Security Instrument, this Security Instrument and the estate conveyed shall terminate and become void. After such occurrence, Lender shall discharge and satisfy this Security Instrument without charge to Borrower. Borrower shall pay any recordation costs. 20. Waivers. Borrower, to the extent permitted by applicable law, waives and releases any error or defects in proceedings to enforce this Security Instrument, and hereby waives the benefit of any present or future laws providing for stay of execution, extension of time, exemption from attachment, levy and sale, and homestead exemption. 21. Reinstatement Period. Borrower's time to reinstate provided in paragraph 10 shall extend to one hour prior to the commencement of bidding at a sheriff's sale or other sale pursuant to this Security Instrument. 22. Purchase Money Mortgage. If any of the debt secured by this Security Instrument is lent to Borrower to acquire title to the Property, this Security Instrument shall be a purchase money mortgage. 23. Interest Rate After Judgment. Borrower agrees that the interest rate payable after a judgment is entered on the Note or in an action of mortgage foreclosure shall be the rate payable from time to time under the Note. 24. Riders to this Security Instrument. If one or more riders are executed by Borrower and recorded together with this Security Instrument, the covenants of each such rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Security Instrument as if the rider(s) were a part of this Security Instrument, [Check applicable box(es)]. 7 Condominium Rider n Growing Equity Rider n Other [specify] 0 Planned Unit Development Rider 0 Graduated Payment Rider -0NIPA) 102061 BK 1809PG2745 Peps 8 of 10 Wtieb: 0.4 BY SIGNING BELOW, Borrower accepts and agrees to the terms contained in this Security Instrument and in any rider(s) executed by Borrower and recorded with it. Witnesses: 1 �[`��•. ��.il.,1 f(seal) DEBORAH L GRAHAM -Borrower (Seal) -Borrower (Seal) (Seal) -Borrower -Borrower (Seal) (Seal) -Borrower -Borrower (Seal) (Seal) -Borrower -Borrower -4NIPA) 10206) 131(1809PG2746 Pape Sot 10 Certificate of Residence � 1 I, iC (�r V �4 I e ter—' , do hereby certify that the correct address of the within -named Mortgagee is P.O. Box 2026, Flint, MI 48501-2026. Witness my hand this 24th day of April 2003 Agent of Mortgagee COMMONWEALTH OF PENNSYLVANIA, C tJ. fl EP.Lfl N D County ss: On this, 24th day of Apri 1 personally appeared DEBORAH L GRAHAM , 2003 , before me, the undersigned officer, known to me (or satisfactorily proven) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged that he/she/they executed the same for the purposes herein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. My Commission Expires: NOTARIAL SEAL KAREN L. NAILOR, NOTARY PUBLIC SILVER SPRING MP., COUNTY OF CUMBERLAND MY COMMISSION EXPIRES MAY 20, 2006 C4NIPA) 10208) BK 1809PG2747 ivemey Title of Officer Papp 10 at 10 I Certify 0 -is to be recorded In Ci: ::and County PA Initlel9: V Recorder of Deeds EXHIBIT A ALL THAT CERTAIN tract or parcel of land and premises, situate, lying and being in the Township of Upper Allen in the County of Cumberland and Commonwealth of Pennsylvania being known as Lot 4G part of Townhouse Plot No. 4 as shown on the final Subdivision Plan of Allenview, Stage II, Section 8, Sheet 2, dated April 12, 1979 and recorded in Plan Book 36, Page 47, as follows, to wit: BEGINNING at the southeast corner of Lot 4-F and going along a line North 36 degrees 08 minutes West a distance of 90.46 feet to a point; thence turning right along a line north 53 degrees 52 minutes East a distance of 20.3 feet to a point; thence turning right along a line South 36 degrees 08 minutes East a distance of 89.93 feet to a point on the northern right of way line of Allenview Drive; thence turning right along said right of way line South 52 degrees 22 minutes 39 seconds West a distance of 20.31 feet to the point of beginning. Parcel #: 42-28-2423-242 EXCEPTING THEREOUT AND THEREFROM (IF ANY) THE PREMISES AS MORE FULLY DESCRIBED IN THE FOLLOWING DEED: NONE PIT123-14288 File # PIT123-14288 K 18 0 913fitment # K320538 This commitment is invalid unless the Insurirfg rovisions and acii les A'and B are attached lasir . c Recording Requested By: Bank of America Prepared By: Bank of America 800-444-4302 1800 Tapo Canyon Road Simi Valley, CA 93063 When recorded mail to: CoreLogic 450 E. Boundary St. Attn: Release Dept. Cha in SC 29036 I IIIIII�IIIIIIIil 11111IIIII1111111111IIIII IIII IIII Doc1D# 2872909450283968 Tax ID: 42-28-2423-242 Property Address: 902 Allenview Dr Mechanicsburg, PA 17055-8604 Property Location: Township of UPPER ALLEN PAO-AM 17902313 4120/2012 This .. ace for Recoedees use MIN #: 1000273-1000237498-1 MERS Phone #: 888-679-6377 ASSIGNMENT OF MORTGAGE For Value Received, the undersigned holder of a Mortgage (herein "Assignor") whose address is 1901 E Voorhees Street, Suite C, Danville, IL 61834 does hereby grant, sell, assign, transfer and convey unto BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP FKA COUNTRYWIDE HOME LOANS SERVICING, LP whose address is 451 7TH ST.SW #B-133, WASHINGTON DC 20410 all beneficial interest under that certain Mortgage described below together with the note(s) and obligations therein described and the money due and to become due thereon with interest and all rights accrued or to accrue under said Mortgage. Original Lender: SIB MORTGAGE CORP., A NEW JERSEY CORPORATION Mortgagor(s): DEBORAH L GRAHAM, UNMARRIED Date of Mortgage: 4/24/2003 Original Loan Amount: $93,941.00 Recorded in Cumberland County, PA on: 5/2/2003, book 1809, page 2738 and instrument number N/A This Mortgage has not been assigned unless otherwise stated below: IN WITNESS WHEREOF, the undersigned has caused this Assignment of Mortgage to be executed on APR 2 3 2012 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. By: Carmen Dena, Ass6tant Secretary State of California County of Ventura p„ APR 2 3 2012 beforf me, Victoria Cook , Notary Public, personally appeared W,57%�.0 C/j/ (%��{/gj , who proved to me on the basis of satisfactory evidence to be the person (s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Notary Public: Victoria Cook (Sea My Commission Expires: 6/28112 I hereby certify that the address of the within named assignee is: 451 7TH ST.SW #B-133, WASHINGTON DC 20410 Signature VICTORIA COOK Commission # 1801310 Notary Public - California I Ventura County My Comm. Expires Jun 28, 2012 DoclD# 2872909450283968 ROBERT P. ZIEGLER RECORDER OF DEEDS CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 201212518 Recorded On 4/30/2012 At 11:16:21 AM * Instrument Type - ASSIGNMENT OF MORTGAGE Invoice Number -107146 User ID - KW * Mortgagor - GRAHAM, DEBORAH L * Mortgagee - BANK OF AMERICA N A * Customer - CORELOGIC *FEES STATE WRIT TAX $0.50 STATE JCS/ACCESS TO $23.50 JUSTICE RECORDING FEES — $11.50 RECORDER OF DEEDS PARCEL CERTIFICATION $10.00 FEES COUNTY ARCHIVES FEE $2.00 ROD ARCHIVES FEE $3.00 TOTAL PAID $50.50 * Total Pages 3 Certification Page DO NOT DETACH This page is now part of this legal document. I Certify this to be recorded in Cumberland County PA RECORDER OD EDS * - Information denoted by an asterisk may change during the verification process and may not be reflected on this page. 111IIIINIIIIIIINIIIIIN .•t-. w.•.rw...w ...aw..own* .,wn... •.ew••— -.r... �. • Supreme Cour ;of Pennsylvania • CourComn i*villGovet S E C T I 0 N A \Pleas et CU 'ANDQ County For Prothonotary Use Only: 714 4• `rr� Docket No: The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the frlint; and service of pleadinis or other papers as required by law or rules of court. Commencement of Action: 0 Complaint 0 Writ of Summons 0 Petition 0 Transfer from Another Jurisdiction 0 Declaration of Taking Lead Plaintiffs Name: BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP Lead Defendant's Name: DEBORAH L. GRAHAM Dollar Amount Requested: • within arbitration limits Are money damages requested? ■Yes ©No (Check one) 13 outside arbitration limits Is this a Class Action Suit?. 0 Yes © No Is this an MDJ Appeal? ■ Yes © No . Name of Plaintiff/Appellant's Attorney: John D. Krohn, Esq., Id. No.312244, Phelan Hallinan, LLP • Check here if you have no attorney (are a Self -Represented [Pro Se] Litigant) S E C T I 0 N B 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 Mass Tort) O Intentional ❑ Malicious Prosecution ❑ Motor Vehicle O Nuisance O Premises Liability ❑ Product Liability (does not include mass tort) O Slander/Libel/ Defamation O Other: MASS TORT O Asbestos O Tobacco ❑ Toxic Tort - DES O Toxic Tort - Implant ❑ Toxic Waste ❑ Other: PROFESSIONAL LIABILITY O Dental ❑ Legal O Medical ❑ Other Professional: Pa.R.C.P, 205.5 CONTRACT (do not include Judgments) ❑ Buyer Plaintiff ❑ Debt Collection: Credit Card ❑ Debt Collection: Other O Employment Dispute: Discrimination O Employment Dispute: Other 0 Other: REAL PROPERTY ❑ Ejectment ❑ Eminent Domain/Condemnation ❑ Ground Rent ❑ Landlord/Tenant Dispute ® Mortgage Foreclosure: Residential ❑ Mortgage Foreclosure: Commercial ❑ Partition ❑ Quiet Title O Other: CIVIL APPEALS Administrative Agencies ❑ Board of Assessment ❑ Board of Elections 0 Dept. of Transportation 0 Statutory Appeal: Other 0 Zoning Board 0 Other: MISCELLANEOUS ❑ Common Law/Statutory Arbitration ❑ Declaratory Judgment 0 Mandamus 0 Non -Domestic Relations Restraining Order 0 Quo Warranto 0 Replevin O Other: Updated 01/01/2011 FIL OF THE PRO THONO �j AR t. 1013t4AY -9 AU 9: 56 CUMBERLAND COUNTY PENNSYLVANIA PHELAN HALLINAN, LLP John D. Krohn, Esq., Id. No.312244 1617 JFK Boulevard, Suite 1400 One Penn Center Plaza Philadelphia, PA 19103 215-563-7000 BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP 7105 CORPORATE DRIVE PLANO, TX 75024 Plaintiff v. DEBORAH L. GRAHAM 902 ALLENVIEW DRIVE MECHANICSBURG, PA 17055-8604 File #: 320444 Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM 1/ 1/ NO. 13r aswas. CUMBERLAND COUNTY CIVIL ACTION - LAW COMPLAINT IN MORTGAGE FORECLOSURE n,,� �l 1 Pd ab a CO + /36iS X( a0163o3 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 #: 320444 1. Plaintiff is BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP 7105 CORPORATE DRIVE PLANO, TX 75024 2. The name(s) and last known address(es) of the Defendant(s) are: DEBORAH L. GRAHAM 902 ALLENVIEW DRIVE MECHANICSBURG, PA 17055-8604 who is/are the mortgagor(s) and/or real owner(s) of the property hereinafter described. 3. On 04/24/2003 DEBORAH L. GRAHAM made, executed and delivered a mortgage upon the premises hereinafter described to MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR SIB MORTGAGE CORP. A NEW JERSEY CORPORATION, which mortgage is recorded in the Office of the Recorder of Deeds of CUMBERLAND County, in Mortgage Book 1809, Page 2738. By Assignment of Mortgage recorded 04/30/2012 the mortgage was assigned to PLAINTIFF, which Assignment is recorded in Assignment of Mortgage Instrument No. 201212518.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. BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP, directly or through an agent, has possession of the promissory note. The promissory note is either made payable to BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER File #: 320444 • TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP or has been duly endorsed. 5. The premises subject to said mortgage is described as attached. 6. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 12/01/2012 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of Mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. 7. The following amounts are due on the mortgage as of 04/16/2013: Principal Balance $80,096.07 Interest $2,503.02 11/01/2012 through 04/30/2013 Late Charges $129.67 Escrow Deficit $29.20 TOTAL $82,757.96 8. 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. 9. This action does not come under Act 91 of 1983 because the mortgage is FHA -insured. 10. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency Mortgage Assistance Program pursuant to Act 91 of 1983, as amended in 2008, and/or Notice of Default as required by the mortgage document, as applicable, have File #: 320444 been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 11. This action does not come under Act 91 of 1983 because the mortgage is FHA -insured. WHEREFORE, Plaintiff demands an in rem judgment against the Defendant(s) in the sum of $82,757.96, 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. • By: File 4: 320444 PHELAN HALLINAN, LLP John D.rohn, Esq., Id. No.312244 Attorney for Plaintiff LEGAL DESCRIPTION ALL THAT CERTAIN tract or parcel of land and premises, situate, lying and being in the Township of Upper Allen in the County of Cumberland and Commonwealth of Pennsylvania being known as Lot 4G part of Townhouse Plot No. 4 as shown on the final Subdivision Plan of Allenview, Stage II, Section B, Sheet 2, dated April 12, 1979 and recorded in Plan Book 36, Page 47, as follows, to wit: BEGINNING at the southeast corner of Lot 4-F and going along a line North 36 degrees 08 minutes West a distance of 90.46 feet to a point; thence turning right along a line north 53 degrees 52 minutes East a distance of 20.3 feet to a point; thence turning right along a line South 36 degrees 08 minutes East a distance of 89.93 feet to a point on the northern right of way line of Allenview Drive; thence turning right along said right of way line South 52 degrees 22 minutes 39 seconds West a distance of 20.31 feet to the point of beginning. Parcel #: 42-28-2423-242 PROPERTY ADDRESS: 902 ALLENVIEW DRIVE, MECHANICSBURG, PA 17055-8604 PARCEL # 42-28-2423-242. File : 320444 VERIFICATION M , s a`► c5-- , hereby states that he// is Qr 1 J^ of BANK OF AMERICA, N.A., Plaintiff in this matter, that he/C),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 hisi3 information and belief. The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unsworn falsification to authorities. DATE: - 2 -- \ 3 File#: 320444 Name: GRAHAM File #: 320444 Name: abke-e(s u c\"\ a �L- Title: > BANK OF AMERICA, N.A. J FORM 1 IN THE COURT OF COMMON PLEAS BANK OF AMERICA, N.A., AS SUCCESSOR BY : OF CUMBERLAND COUNTY, PENNSYLVANIA MERGER TO BAC HOME LOANS SERVICING, LP F/K/A COUNTRYWIDE HOME LOANS SERVICING, LP vs. DEBORAH L. G � o w Plaintiff(s) z rn r �D kp r- D0 n NOTICE OF RESIDENTIAL MORTGAGE FORECLOS11E DIVERSION PROGRAM Defendant(s) Civil 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 a lawyer, 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 no charge to you. Once you have been appointed a legal representative, you must promptly meet with that legal representative within twenty (20) days of the appointment date. During that meeting, you must provide the legal representative with all 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 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 out 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 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 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 out reasonable arguments 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. sf_s/2oi3. • Date Respectfully submitted: Johr). Krohn, Esq., Id. No.312244 Attorney for Plaintiff FORM 2 Cumberland County Residential Mortgage Foreclosure Diversion Program. Financial Worksheet Date Cumberland County Court of Common Pleas 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 counseling agency. Please provide the following information to the best of your knowledge: CUSTOMER/PRIMARY 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: Phone Numbers: State: Zip: Home: Cell: Office: Other: Email: # of people in.household: How long? CO -BORROWER Mailing Address: City: Phone Numbers: Email: # of people in household: State: Zip: Home: Cell: Office: Other: How long? FINANCIAL INFORMATION First Mortgage Lender: Type of Loan: Loan Number: Second Mortgage Lender: Type of Loan: Loan Number: Date You Closed Your Loan: 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: Amount owed: Value: Automobile #2: Model: Amount owed: Value: Other transportation (automobiles, boats, motorcycles): Model: Year: Amount owed: Value Year: Year: Monthly Income Name of Employers: 1. Monthly Gross Monthly Net 2. Monthly Gross Monthly Net 3. Monthly Gross Monthly Net 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 EXPENSE AMOUNT Mortgage Food 2ndMortgage Utilities Car Payment(s) Condo/Neigh. Fees Auto Insurance Med. (not covered) Auto fuel/repairs Other prop. payment Install. Loan Payment Cable TV Child Support/Alim. Spending Money Day/Child Care/Tuit. 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: { •U 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 known, regarding your lender and lender's loan servicing company: Lender's Contact (Name): Servicing Company (Name): Contact: Phone: Phone: AUTHORIZATION I/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 counseling services provided by the above named Borrower Signature Date Co -Borrower Signature Date Please forward this document along with the following information to lender and lender's counsel: 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) Ronny R Anderson Sheriff Jody S Smith • Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMB or of ciii3/104;g , ?4;:i01.1A3:24 • • OFFICE OF ni-,...w!-ArFp ERLAND,ccUNTY ilCUI:3:1.-NIX1:5:-VICPVil Bank of America, N.A. vs. Deborah L. Graham Case Number 2013-2582 SHERIFF'S RETURN OF SERVICE 05/10/2013 05:28 PM - Deputy Ryan Burgett, being duly sworn according to law, served the requested Notice of Residential Mortgage Foreclosure Diversion Program and Complaint in Mortgage Foreclosure by "personally" handing a true copy to a person representing themselves to be the Defendant, to wit: Deborah L. Graham at 902 Allenview Drive, Upper Allen Township, Mechanicsburg, PA 17055. RYAN BURGETT, DPU SHERIFFCOST: $39.30 SO ANSWERS, May 13, 2013 RON4Y R ANDERSON, SHERIFF (c) CountySullo Sheriif, Toleosoll. Inc. CERTIFICATE OF SERVICE I hereby certify that on this 21st day of November, 2014, I caused a copy of the foregoing to be served by first-class and electronic mail upon the following: Stephen K. Portko, Esquire BRATIC & PORTKO 101 South U.S. Route 15 Dillsburg, PA 17019 braticportko@aol. conn Attorney for Defendant