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HomeMy WebLinkAbout14-1497Supreme Co ?' ennsylvania Cour. offCdinmo liv; 'leas Cv - Cover)Sheet Cu • berland County OR1G(NAL For Prothonotary Use Only: ! r, ! , Docket No: .The infyrrnation collected on this form is used solely for court administration purposes. This ,form does not supplement or replace the filing and service of pleadings or other papers as required by law or rules of court. Commencement of Action: Petition Declaration of Taking 13 Complaint 0 Writ of Summons 0 Transfer from Another Jurisdiction 0 Lead Plaintiffs Name: Carolyn G. McCarty Lead Defendant's Name: Michael P. Zielinski Dollar Amount Requested: Owithin arbitration limits Are money damages requested? ® Yes 0 No (check one) } outside arbitration limits Is this a Class Action Suit? Q Yes 112 No Is this an MDJAppeal? 0 Yes No Name of Plaintiff /Appellant's Attorney: Brandon S. Harter, Esquire, I,D. No. 307676 0 Check here if you have no attorney (are a Self- Represented jPro Se$ Litigant) Nature of the Case: Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. TORT (do not include Mass Tort) O Intentional O Malicious Prosecution Motor Vehicle O Nuisance Premises Liability Product Liability (does not include mass tort) O Slander/Libel/ Defamation • Other: MASS TORT Asbestos O Tobacco O Toxic Tort - DES O Toxic Tort - Implant O Toxic Waste Other: PROFESSIONAL LIABLITY Dental Legal Medical Other Professional: CONTRACT (do not include Judgments) O Buyer Plaintiff Debt Collection: Credit Card Q Debt Collection: Other O Employment Dispute: Discrimination Employment Dispute: Other Other: REAL PROPERTY 0 Ejectment Eminent Domain /Condemnation Ground Rent O Landlord/Tenant Dispute Mortgage Foreclosure: Residential O Mortgage Foreclosure: Commercial Partition • Quiet Title Other: CIVIL APPEALS Administrative Agencies El Board of Assessment Board of Elections �] Dept. of Transportation O Statutory Appeal: Other 1 • Zoning Board Other: MISCELLANEOUS • Common Law /Statutory Arbitration Declaratory Judgment • Mandamus Non - Domestic Relations Restraining Order Quo Warranto 0 Replevin 0 Other: Updated 1/1/2011 HARTMAN UNDERHILL & BRUBAKER, LLC Brandon S. Harter, Esquire Attorney I.D. No. 307676 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254/(717)299-3160 (facsimile) CAROLYN G. McCARTY, v. ORIGINAL Attorneys for Plaintiff : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW ;NO. — /197 MICHAEL P. ZIELINSKI and VICTORIA L. MYERS, as Administratrix of the ESTATE OF KIMBERLY A. ZIELINSKI Defendants : ACTION IN MORTGAGE FORECLOSURE NOTICE TO DEFEND 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YQ13 CAN GET LEGAL HELP. -0 a rri 57; r- < (-) HARTMAN UNDERHILL & BRUBAKER', LLC By: 6z1°- Brandon S. Harter, Esquire Attorney I.D. No. 307676 Attorneys for Plaintiff Date: -2, // {00714434.1 } Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania (717) 249-3166 CLJ rz X5° 7.1:aa 1 e: HARTMAN UNDERHILL & BRUBAKER, LLC Brandon S. Harter, Esquire Attorney I.D. No. 307676 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254/(717)299-3160 (facsimile) Attorneys for Plaintiff CAROLYN G. McCARTY, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION - LAW MICHAEL P. ZIELINSKI and VICTORIA L. MYERS, as Administratrix of the ESTATE OF KIMBERLY A. ZIELINSKI Defendants : NO. : ACTION IN MORTGAGE FORECLOSURE COMPLAINT IN MORTGAGE FORECLOSURE 1 Plaintiff, Carolyn G. McCarty, is an adult individual residing at 2052 Kestrel Court, Lancaster, PA 17603. 2. Defendant, Michael P. Zielinski, is an adult individual residing at 342 Walton Street, Lemoyne, PA 17043. 3 Defendant, Victoria L. Myers, Administratrix of the Estate of Kimberly A. Zielinski, Deceased, by appointment in Letters of Administration issued by the Register of Wills of Dauphin County on June 12, 2013, is an adult individual residing at 7808 Kiwanis Road, Harrisburg, PA 17112. 4. On March 5, 2009, Michael P. Zielinksi and Kimberly A. Zielinski (collectively the "Zielinskis") borrowed from Plaintiff $200,000 to be used in connection with the purchase of a home located at 342 Walton Street, Lemoyne, PA 17043 (the "Mortgaged Property"). (00714434.1 ) 2 5. The Zielinskis were required to repay the loan in accordance with the terms of a Line of Credit Note, dated March 5, 2009 (the "Note"), which required continuing monthly payments of principal and interest until all amounts remaining due thereunder were paid. A true and correct copy of the Note is attached as Exhibit A hereto and incorporated by reference. 6. As security for the obligations under the Note Defendant executed a Mortgage dated March 5, 2009 (the "Mortgage") granting Plaintiff a Mortgage over the Mortgaged Property. The Mortgage was recorded on March 26, 2009 in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, Parcel Number 12-22-0822- 292 & 12-22-0822-325. A true and correct copy of the Mortgage is attached as Exhibit B hereto and incorporated by reference. 7. Upon the death of Kimberly A. Zielinski, Michael P. Zielinksi became the sole owner of the Mortgaged Property. 8. The Mortgaged Property is described more fully in the legal description attached to the Mortgage, which description is incorporated herein. (See Ex. B). 9. Upon the occurrence of a default, the Note provides Plaintiff the right to: a. Increase the fixed rate charged under the Note to eight percent (8%); b. Collect a late charge equal to ten (10%) of any overdue payment; c. Accelerate, if necessary, the entire indebtedness secured under the Mortgage; and d. Take such other actions in law or in equity to enforce the Mortgage and to collect all sums secured by the Mortgage. {00714434.1 } 3 10. The failure to perform any obligations arising under the Mortgage, including, without limitation, the failure to make payments required by the Note, constitutes a default under the Mortgage. 11. Plaintiff is the lawful holder of the Mortgage, and the Mortgage has not been assigned. 12. At present, Michael P. Zielinski is both the mortgagor and owner of the Mortgaged Property. 13. Michael P. Zielinski and Kimberly A. Zielinski defaulted under the terms of the Note and Mortgage as a result of the failure of both or either to make any monthly payments of principal and interest in the amount of $1,200 each as required by the Note, the first such failure occurring on April 1, 2009 and subsequent failures occurring the first day of each calendar month thereafter through March 1, 2014. 14. On January 27, 2014, Plaintiff sent Michael P. Zielinksi a written notice of this default and the intent to foreclosure. A true and correct copy of the notice is attached hereto as Exhibit C and is incorporated by reference. 15. On February 7, 2014, Plaintiff sent Daniel Herr, Esquire, counsel for the Estate of Kimberly A. Zielinski, a written notice of this default and the intent to foreclose. A true and correct copy of the notice is attached hereto as Exhibit D and is incorporated by reference. 16. Pursuant to the terms of the Note and the Mortgage, the entire unpaid balance of the debt secured by the Mortgage is now immediately due and payable. {O0714434.1 } 4 17. As a result of Defendant's default under the Note and Mortgage, Plaintiff is, as of the date of this Complaint, owed the following: Principal Balance $200,000.00 Interest at standard rate (4%) from 3/5/09 to 4/1/09 Interest at default rate (8%) from 4/2/09 to 3/10/14 Late Charges $591.78 $79,035.62 $4,080.00 Total $283,707.40 WHEREFORE, Plaintiff, Carolyn G. McCarty, requests judgment in her favor and against Defendants, in the amount set forth in Paragraph 17 above, plus subsequently accruing charges authorized under the Note and Mortgage, including late charges and interest from March 10, 2014, and costs of suit until paid, and for foreclosure and sale of the Mortgaged Premises. HARTMAN UNDERHILL & BRUBAKER, LLC Date: //5 By: 6/20.4.4 Brandon S. Harter, Esquire Attorney I.D. No. 307676 Attorneys for Plaintiff {00714434.1 ) 5 VERIFICATION I verify that the statements made in the foregoing document are true and correct. I understand that any false statements contained herein are subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn falsification to authorities for any false statements. Date: .3 .26 ( 4- 100714434.1 } 6 Exhibit A LINE CREDIT Nei Tip $200,000 Lancaster, Pennsylvania. March 5, 2009. FOR VALUE RECEIVED, MJtCHAEL P . ZIELINSKI and KIMBERLY A. ZIELINSKI (jointly and severally, the "Maker "), promises to pay to the order of CAROLYN G MCCART Y ( "Payee "), at 131 Eshelman Road, Lancaster, PA 17603, or at such other place as Payee may designate in writing, the principal sum of Two Hundred Thousand Dollars ($200,000) or such greater or lesser amount as shall be shown on the records of Payee as the unpaid principal balance of this Line of Credit Note (the "Note "), together with interest on the unpaid principal balance as provided in this Note, as follows: (a) Interest on the unpaid principal balance of this Note shall be payable from the date of this Note at an annual fixed rate equal to four percent (4%). (b) Commencing on April 1, 2009, and continuing on the first day of each month thereafter until this Note and all accrued interest is paid in full, interest and principal shall be due and payable in monthly installments of One Thousand Two Hundred Dollars ($1,200) each, or, if applicable, in accordance with Payee's monthly statements therefor. The unpaid principal balance of this Note and all accrued interest thereon, if not sooner paid, shall be due and payable on March 5, 2024, without notice or demand. (c) Upon the occurrence of an Event of Default, including failure to pay upon maturity, Payee, at its option, may, if permitted under applicable law, increase the fixed interest rate charged under this Note to eight percent (8 %) (the "Default Rate "). The highest rate of interest provided for in this Note shall continue to apply to the debt evidenced by this Note notwithstanding the entry of Judgment on this Note. (d) . All payments pursuant to this Note shall be applied first to the payment of accrued interest and the balance to principal. (e) Maker shall have the privilege of paying the indebtedness evidenced by this Note in full or in part at any time and from time to time without the payment of penalty or unearned interest; provided, however, that no prepayment shall postpone or interrupt the obligation to make periodic payments pursuant to subparagraph (b) above or alter the amount of such payments. Calculations by Payee of principal and interest due shall be conclusive absent manifest error. Interest shall be calculated on the basis of the actual number of days in the then current calendar year divided by 360. Both principal and interest are payable in lawful money of the United States of America. This Note is secured by, and is entitled to the benefits of, the Open-End Mortgage, dated of even date herewith (the "Mortgage "). Capitalized terms used in this Note and not otherwise defined shall have the respective meanings given to them in the Mortgage. The terms of the Mortgage are incorporated by reference herein. f In hereunder r the event any payment due hereunder shall become overdue for a. period. in excess of ten (10) days after its due date, to cover the extra expense involved in handling delinquent payments, Maker shall pay to Payee, upon written demand therefor, a "late charge" equal to ten percent (10 %) of any overdue payment or $20.00, whichever is greater. IfMaker shall fail to perform or cause to be perfoi lied any of the terms, agreements or covenants of Maker contained in this Note or in the Mortgage (taking into account all applicable notice and cure periods), Payee may, in its discretion, but without any duty to do so and without waiving any default, perfoim any of such terms, agreements or covenants, in part or in whole; and any sums advanced or expended by Payee in or toward the fulfillment of such telrrrs, agreements or covenants shall become part of and be added to the indebtedness evidenced by this Note and shall be due and payable on written demand together with interest thereon from the date of the respective advance or expenditure at a rate per annum equal to the Default Rate, and such sums and interest thereon shall be secured by the Mortgage. The occurrence or existence of an Event of Default under the Mortgage shall constitute an Event of Default under this Note. Should an Event of Default occur, then the entire unpaid principal balance of this Note, together with all accrued interest and all other sums due by Maker hereunder or under the Mortgage shall, at the option of Payee and without notice to Maker, become due and payable immediately, and payment of the same may be enforced and recovered in whole or in part at any time by one or more of the remedies provided to Payee in this Note or the Mortgage, and in such case Payee may also recover all costs of suit and other expenses in connection therewith, together with reasonable attorneys' fees for collection. MAKER HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR AT- TORNEYS OR THE PROTHONOTARY OR CLERK OF ANY COURT OF RECORD IN THE COI CVIONWEALTH OF PENNSYLVANIA, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, TO APPEAR FOR MAKER IN ANY SUCH COURT, )WITH OR `WITHOUT DECLARATION FILED, AS OF ANY TERM OR TIIvIB THERE OR ELSEWHERE TO BE HELD AND THEREIN TO CONFESS OR ENTER JUDGMENT AGAINST MAKER IN FAVOR OF PAYEE FOR ALL SUMS DUE OR TO BECOME DUE BY MAKER TO PAYEE UNDER THIS NOTE, WITH COSTS OF SUIT AND RELEASE OF ERRORS AND WITH k REASONABLE ATTORNEY'S FEES; AND FOR DOING SO THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. SUCH AUTHORITY AND POWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE THEREOF, AND JUDGMENT MAY BE CONFESSED AS AFORESAD FROM TIME TO TIME AS OFTEN AS THERE IS OCCASION THEREFOR. MAKER, BEING FULLY AWARE OF THE RIGHT TO NOTICE AND A HEARING CONCERNING THE VALIDITY OF ANY AND ALL' CLAIMS THAT MAY BE ASSERTED AGAINST MAKER BY PAYEE BEFORE A JUDGMENT CAN BE ENTERED HEREUNDER OR BEFORE EXECUTION MAY BE LEVIED ON SUCH JUDGMENT AGAINST ANY AND ALL PROPERTY OF MAKER, HEREBY WAIVES TO THE FULLEST EXTENT PROVIDED BY LAW THESE RIGHTS AND AGREES AND CONSENTS TO JUDGMENT BEING ENTERED BY CONFESSION IN ACCORDANCE WITH THE TERMS HEREOF AND EXECUTION BEING LEVIED ON SUCH JUDGMENT AGAINST ANY AND ALL PROPERTY OF MAKER, IN EACH CASE WITHOUT FIRST {00541733.1} 2 GIVING NOTICE AND THE OPPORTUNITY TO BE HEARD ON THE \/ALIDITY OF THE CLAIM OR CLAIMS UPON WHICH SUCH JUDGMENT IS ENTERED. The remedies of Payee as provided in this Note and in the Mortgage shall be cumulative and concurrent and may be pursued singly, successively or together against Maker and/or against any property mortgaged, pledged or assigned under the Mortgage to Payee as security for this Note, at the sole discretion of Payee, and such remedies shall not be exhausted by any exercise thereof but may be exercised as often as occasion therefor shall occur. Payee shall not by any act of omission or commission be deemed to have waived any of its rights or remedies hereunder unless such waiver be in writing and signed by Payee, and then only to the extent specifically set forth therein; a waiver on one event shall not be construed as continuing or as a bar to or waiver of such right or remedy on a subsequent event. Maker hereby waives to the fullest extent provided by law and releases all benefit that might accrue to Maker by virtue of any present or future laws exempting any of the property, real or personal, or any part of the proceeds arising from any sale of such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process or extension of time for payment, as well as the right of inquisition on any real estate that may be levied upon under a judgment obtained by virtue hereof, and Maker hereby voluntarily condemns the same and authorizes the entry of such voluntary condemnation on any writ of execution issued thereon, and agrees that such real estate may be sold upon any such writ in whole or in part in any order desired by Payee. Maker hereby waives to the fullest extent provided by law presentment for payment, demand, notice of nonpayment, notice of protest and protest of this Note, and agrees that the liability of Maker shall be without regard to the liability of any other party liable hereunder as maker, principal, surety, guarantor or endorser and shall. not be in any manner affected by an.y indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee in respect of such other party; and Maker hereby consents to any and all extensions of time, renewals, waivers or modifications that may be ganted by Payee to any such other party with respect to the payment or other provisions of this Note, and to the release of any of the collateral securing this Note, with or without substitution, and agrees that makers, endorsers, guarantors or sureties may become parties hereto without notice to Maker or affecting Maker's liability hereunder. Notwithstanding anything to the contrary herein contained, the total liability of Maker for payment of interest pursuant hereto shall not exceed the maximum amount, if any, of such interest permitted by applicable law to be contracted for, charged or received, and if any payments by Maker to Payee include interest in excess of such a maximum amount, such excess shall be refunded to Maker. Any such application or refund shall not cure or waive any Event of Default. In determining whether or not any interest payable under this Note exceeds the highest rate permitted by law, any non-principal payment (except payments specifically stated in this Note to be "interest" or to be applied in respect of interest), including without limitation prepayment premiums and late charges, shall be deemed, to the extent permitted by applicable law, to be an expense, fee, premium or penalty rather than interest. {00541733.1} If any provision hereof is found by a court of competent jurisdiction to be prohibited or unenforceable, it shall be ineffective only to the extent of such prohibition or unenforceability, and such prohibition or unenforceability shall not invalidate the balance of such provision to the extent it is not prohibited or unenforceable, nor invalidate the other provisions hereof, all of which shall be liberally construed in favor of Payee in order to effect the provisions of this Note. As used herein, the words "Payee". and "Maker" shall be deemed and construed to include the respective successors and assigns of Payee and Maker. This Note shall be construed accord- ing to and governed by the internal laws of the Conunonwealth of Pennsylvania. IN WITNESS WHEREOF, Maker, intending to be legally bound, has duly executed this Note the day and year first above written. {00541733.1} 4 .„, iff Ii MicHAEL P. ZrEd17sku KIMBERLY A. DEL.E■ISET Exhibit li R.EPARED RETURN TO: HARTMAN UNDERHILL at BRUBAKER LLP HARTMAN UNDERHILL & BRUBMCIP,R LLP' 221 EAST CHESTNUT STREET LANCASTER, PA 17602-2782 PARCEL D. NO: (11 L y ^ . ]PARCEL ADDRESS: 342 Walton StreetLern,oyne, PA 17043 OPEN-END MORTGAGE THIS OPEN-END MORTGAGE SECURES FUTURE ADVANCES Amount Secured Hereby: $200,000.00 THIS MORTGAGE made the L,)' day of March, 2009, between MICHAEL P. ZIELINSKI and KIMBERLY A. ZIELINSKI, husband and wife (collectively, the "Mortgagor") and CAROLYN G. McCARTY (the "Secured Party"). Mortgagor bythis Mortgage (the "Mortgage") grants and conveys to Secured Party all of Mortgagor's right, title and interest in the property (the "premises") situated in Cumberland County, Pennsylvania, as more specifically described in the attached Exhibit "A", together with (a) all the buildings and improvements now or hereafter erected on the premises, (b) all easements, rights and appurtenances belonging to or benefiting the premises, (c) all rents, issues and profits pertaining to or arising from the premises, and (d) all fixtures, machinery, equipment and appliances now or hereafter attached to or located upon or used in connection with the premises and the property described in subparagraphs (a) through (d) above being referred to in this Mortgage as the "Mortgaged Property". TO HAVE AND TO HOLD the Mortgaged Property unto Secured Party, Secured Party's successors and assigns forever, in fee. 1. Obligations Secured. This Mortgage and the rights in the Mortgaged Property granted to Secured Party shall secure the obligation of Mortgagor to pay or perform the following: (a) Payment and performance of Mortgagor's obligations to Secured Party (and each entity comprising Secured Party) under that certain Line of Credit Note bearing even date herewith (the "Note"); and (b) All other obligations of any Mortgagor to Secured Party, fixed or contingent, whether now or hereafter incurred or created. 00541625,1) 1 2. Covenants. Until all sums secured by this Mortgage are paid in full, Mortgagor covenants and agrees with Secured Party as follows: (a) To perform and observe all of the agreements contained in the Note and this Mortgage. (b) To pay at least thirty (30) days prior to the accrual of any interest or penalty all taxes, water and sewer rents, assessments and all other charges or claims which may be assessed or levied upon the Mortgaged Property at any time. (c) To maintain at all times with respect to the Mortgaged Property insurance against such hazards, in such amounts, and with insurers as are satisfactory to Secured Party; and to pay as and when due all premiums for such insurance. In the event of any loss or damage to the Mortgaged Property, Secured Party may file, proof of loss if not filed promptly by Mortgagor. Mortgagor directs any insurer to pay directly to Secured Party any net proceeds which may be payable under any insurance, including return of unearned premiums; and Secured Party at Secured Party's option may apply such net proceeds on account of amounts due pursuant to the Agreement or secured by this Mortgage or Secured Party may apply such payments to the repair and restoration of the Mortgaged Property. . (d) Tomaintain the Mortgaged Property in good condition, order and repair; not to make or permit to be made any demolition of the Mortgaged Property without first obtaining the written consent of Secured Party, which consent Secured Party reserves the right to refuse; and to permit Secured Party and Secured Party's representatives to enter the Mortgaged Property and inspect the Mortgaged Property at all reasonable times. (e) To pay when due all sums payable under or secured by, and to perform and observe all agreements contained in, any mortgage or other lien which may have priority over the lien, of this Mortgage. (f) To execute and deliver to Secured Party upon request such documents and statements as Secured Party may require to perfect, protect or extend the lien or priority of this Mortgage. 3. Default. The occurrence of any of the following events shall constitute a default under this Mortgage: (a) The occurrence of a default or event of default as set forth in the Note. (b) Failure of Mortgagor to observe and perform any covenant or agreement contained in (i) the Note or (ii) this Mortgage. (c) Any proceeding shall be commenced by or against Mortgagor seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law. {00541625,1} 2 (d) Commencement of any action or proceeding to foreclose or issue execution on the Mortgaged Property or any part of the Mortgaged Property. (e) Mortgagor shall sell or convey the Mortgaged Property or any part of the Mortgaged Property or any interest in the Mortgaged Property without first obtaining the written consent of Secured Party, which consent Secured Party reserves the right to refuse. 4. Remedies. The indebtedness reflected by the Note and all other sums secured by this Mortgage, together with accrued interest, shall be immediately due and payable at the option of Secured Party, without notice or demand, upon the occurrence of any default specified in paragraph 3; and upon occurrence of such a default, Secured Party may immediately and without notice to Mortgagor: (a) Institute appropriate actions to foreclose this Mortgage and Secured Party may proceed in such actions to judgment and execution; and (b) Exercise Secured Party's right to become a mortgagee in possession of the I\M,.ortgaged Property and Secured Party may, upon obtaining possession of the Mortgaged Property, exercise all rights as a mortgagee in possession; and (c) Take such other actions at law or in equity to enforce this Mortgage and to collect all sums secured by this Mortgage. 5. Remedies Cumulative, Waiver. All remedies provided in the Agreement or in this Mortgage or in any other document delivered by Mortgagor to Secured Party are distinct and cumulative to any other right or remedy afforded by law or equity, all of which remedies maybe exercised by Secured Party concurrently, independently or successively. 6. Condemnation. In the event of any condemnation or taking of any part of the IM/ortgaged Property by eminent domain or other authority, all net proceeds (whether the award or agreed compensation for the damages sustained) payable to Mortgagor shall be paid to Secured Party; and Secured Party at Secured Party's option may apply such net proceeds on account of amounts due pursuant to the Agreement or secured by this Mortgage or Secured Party may apply such payments to the repair and restoration of the Mortgaged Property. 7. Taxes, Assessments, etc. If Mortgagor should (a) fail to pay taxes, assessments, water and sewer rents, sums due under any prior lien or insurance premiums relating to the Mortgaged Property, or (b) fail to make necessary repairs, or (c) peiniit waste, or (d) fail to cure any default under any prior lien, then Secured Party, at Secured Party's election and without notice to Mortgagor shall have the right to make any such payment or expenditure and to take any action which Mortgagor should have made or taken or which Secured Party deems advisable to protect the security of this Mlortgage or the Mortgaged Property. Any amounts advanced by Secured Party pursuant to this Mortgage shall be immediately due from Mortgagor to Secured Party, shall be secured by this Mortgage (and the lien therefor shall relate back to the date of this Mortgage) and shall bear interest from the date of payment by Secured Party until the date of repayment at a rate equal to two percent (2 %) per annum above the Prime rate of interest as (00541625.1) 3 reported from time to time in the "Money Rates" section of the Wall Street Journal (or its successor section). 8. Defeasance. If Mortgagor shall observe all the covenants and agreements on Mortgagor's part contained in the Agreemerit, this Mortgage and any other obligation of Mortgagor to Secured Party, then this Mortgage shall become void. • 9. Binding Effect; Benefit. Any act or agreement to be done or performed by Mortgagor shall be construed as a covenant running with the land and shall be binding upon Mortgagor and Mortgagor's successors and assigns as if each successor and assign had made such agreement. This Mortgage shall inure to the benefit of Secured Party and Secured Party's successors and assigns. 10. Construction. As used in this Mortgage, the singular shall include the plural, the plural shall include the singular, and the use of any gender shall be applicable to all genders. The liability of each Mortgagor, if more than one, shall be joint and several. 11. Future Advances. THIS MORTGAGE SECURES FUTURE ADVANCES. This Mortgage is an open -end mortgage as defined at 42 P.S. § 8143(f) and as such is entitled to all the benefits of 42 P.S. § 8143 et seq. (the "Act "). The parties to this Mortgage intend that, in addition to any other debt or obligation secured hereby, this Mortgage shall secure the entire balance owing at any time to Secured Party under the Note, whether arising before or after this Mortgage is executed or left for recording. IN WITNESS WHEREOF, Mortgagor, intending this Mortgage to be a sealed instrument which is legally binding, has caused this Mortgage to be duly executed and delivered. WITNESS: 14^ • MpRTGA160 t 1... ��;kl�[7; �p 7,r r7 i MrcHAEL Jt . Zii"u uN:s. .._.—./ '` - '1'�'i ,��r ° %�I I-u E v A.. ZIEE INS ICI f �e — /� 1 The address of Secured Party is 131 Eshelm.an Road, Lane dell PA 17601. Secured Party ,epresentative {00541625.1} 4 COMMON-Vv'EALTH OF PENNSYLVANIA, -7 7'-'-(7 /-\.^ f.'"1 t CO 1\ U • 0Q • JO • On this the day of March, 2009, before me, the undersigned officer, personally appeared MICHAEL P. ZIELINSKI, an adult individual who executed the foregoing instrument for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. COMMONWEALTH OF PENNSYLVANIA : ss: COUNTY OF L,-)4" On this the day of March, 2009, before me, the undersigned officer, personally Notary Public(y' My commission \ex-pi/L) COMMONWEA.LTH OF t"ENNSYLVANIA. l'‘lotedriat Sea! TetTes L knight, Nic.ttary PuW‘'.; . Hampden Twp., 0171bl...demi County My COMMiSSIOrt ExOree.Juiy 18, 2009 Member, Pennsylvania Association of Notaries appeared KlmBERLY A. ZrELENSKI, an adult individual who executed the foregoing instrunient for the purposes therein contained. ri\T 'WITNESS WHEREOF, 1 hereunto set my hand and official seal. • 4,q_ L:747— (00541625.1) Notary Public . \ My commission eq_lres) COMMONWEALTH OF PEMSYLVAN11,4 Notatial SsaL Term- L. Knight, Netaly Pub& Hampden Twp., Curnriand County My Of glrmason Eco!reriktury. 18, 2003 Member, PsnimylvtAfIkA A2f,,,J.ciatton of Notaries EXEMIT "A" TRACT NO. 1: ALL THAT CERTAIN parcel of lard situate in the Borough of Lemoyne, Cumberland County, Pennsylvania, more particularly bounded and described as follows: BEGINNING at a point on the southern right -of -way line of Walton Street, said point being located at the northeastern corner of lands now or formerly of William and Molly Coulson; thence along the southern right -of- way line of Walton Street, North forty -three degrees thirty minutes zero seconds East, a distance of twenty and zero hundredths feet (N 43° 30' 00" E, 20.00') to a point; thence along Lot #1, South forty -six degrees thirty minutes zero seconds East, a distance of two hundred and zero hundredths feet (S 46° 30' 00" E, 200.00') to a point; thence along Lot A, North forty -three degrees thirty minutes zero seconds East, a distance of sixty and zero hundredths feet (N 43° 30' 00" E, 60.00') to a point; thence along lands now or formerly of Curtis and Kathryn Heisler and then lands now or formerly of Richard Cook, North forty -three degrees thirty minutes zero seconds East, a distance of one hundred twenty and zero hundredths feet (N 43° 30'00" E, 120.00') to a point; thence along lands now or formerly of Kurt Bogerman, Thomas Leonard and then Samuel and Lucy Simons, South forty -six degrees thirty minutes zero seconds East, a distance of two hundred and zero hundredths feet (S 46° 30' 00" E, 200.00') to a point; thence by lands now or formerly of Samuel and Lucy Simon, South forty - three degrees thirty minutes zero seconds West, a distance of two hundred and zero hundredths feet (S 43° 30' 00" W, 200.00') to a point; thence along lands now or formerly of William and Molly Coulson, North forty -six degrees thirty minutes zero seconds West, a distance of four hundred and zero hundredths feet (N 46° 30' 00" \N, 400.00') to a point, the place of BEGINNING. CONTAINING 44,000 square feet or 1.01 acres. BEING Lot #2 in a Subdivision Plan dated December 4, 2008 prepared by R. J. Fisher & Associates, Inc., Professional Land Surveyors, and recorded on March , 2009 in the Recorder of Deeds Office of Cumberland County in TRACT NO. 2: ALL THAT CERTAIN parcel of land situate in the Borough of Lemoyne, Cumberland County, Pennsylvania, more particularly bounded and described as follows: BEGINNING at a point located at the southwestern corner of Lot #1; thence along Lot #1, North forty -three degrees thirty minutes zero seconds East, a distance of sixty and zero hundredths feet (N 43° 30' 00" E, 60.00') to a point; thence along lands now or formerly of Curtis and Kathryn Heisler, South forty -six degrees thirty minutes zero seconds East, a distance of fifty and zero hundredths feet (S 46° 30' 00" E, 50.00') to a point; thence along Lot #2, South forty -three degrees thirty minutes zero seconds West, a distance of sixty and zero hundredths feet (5 43° 30' 00" W, 60.00') to a point; thence by same., North forty -six degrees thirty minutes zero seconds West, a distance of fifty and zero hundredths feet (N 46° 30' 00" W, 50.00') to a point, the place of BEGINNING. CONTAINING 3,0.00 square feet or 0.07 acres. BEING Lot "A" on a Subdivision Plan dated December 4, 2008 prepared by R. J. Fisher & Associates, Inc., Professional Land Surveyors, and recorded on March , 2009 in the Recorder of Deeds Office of Cumberland County in TRACT NOS. 1 AND 2 BEING part of the same premises which Rosemary E. Grant by a Deed dated July 24, 2006 and recorded in the Recorder of Deeds Office of Cumberland County in Record Book 275, Page 4733, granted and conveyed unto Michael L. Coons and Diane L. Coons, husband and wife, the GRANTORS herein. C:IDOCUMENTS AND SETTINGS \GMM\LOCAL SETTINGS \TEMPORARY INTERNET FILES \OLK3 \COONS - ZIELINSKI.DOC ROBERT P. ZIEGLER RECORDER OF DEEDS • CUMBERLAND COUNTY 1 COURTHOUSE SQUARE CARLISLE, PA 17013 717-240-6370 Instrument Number - 200909164 Recorded On 3/26/2009 At 12:51:29 PM Instrument Type - MORTGAGE Invoice Number - 40059 User ID - MSW Mortgagor - ZIELINSKI, MICHAEL P Mortgagee - MCCARTY, CAROLYN G Customer - ASSURED LAND FEES STATE WRIT TAX STATE JCS/ACCESS TO JUSTICE RECORDING FEES - RECORDER OF DEEDS PARCEL CERTIFICATION FEES AFFORDABLE HOUSING COUNTY ARCHIVES FEE ROD ARCHIVES FEE TOTAL PAID $0.50 $10.00 $15.50 $20.00 $11.50 $2.00 $3.00 $62.50 *Totai Pages - 7 Certification Page FIG NO DETAC1F This page iS Row part anis Legal document. Certify this to he recorded Cumberlland County PA RECORDER OF D EDS * - Information denoted by an asterisk may change during the. verification process and may not be reflected on this page. Cil Exhibit C HARTMAN UNDERHILL & BRUBAKER LLP ATTORNEYS AT LAW January 27, 2014 Mr. Michael P. Zielinski 342 Walton Street Lemoyne, PA 17043 Re: 342 Walton Street, Lemoyne, Pennsylvania ACT 6 NOTICE OF INTENTION TO FORECLOSE MORTGAGE Dear Mr. Zielinski: The MORTGAGE held by Carolyn G. McCarty on your property located at 342 Walton Street, Lemoyne, Pennsylvania, IS IN SERIOUS DEFAULT because you have not made the monthly payments of One Thousand Two Hundred Dollars ($1,200) for the months from April 2009 through January 2012. Late charges (and other charges) have also accrued to this date in the amount of $4,080. The total amount now required to cure this default, or in other words, get caught up in your payments, as of the date of this letter, is $44,880. You may cure this default within THIRTY (30) DAYS, of the date of this letter, by paying to us the above amount of $44,880, plus any additional monthly payments and late charges which may fall due during this period. Such payment must be made at this firm's offices at 221 East Chestnut Street, Lancaster, Pennsylvania 17602. If you do not cure the default within THIRTY (30) DAYS, our client intends to exercise her right to accelerate the mortgage payments. This means that whatever is owing on the original amount borrowed will be considered due immediately and you may lose the chance to pay off the original mortgage in monthly installments. If full payment of the amount of default is not made within THIRTY (30) DAYS, we have been instructed to start a lawsuit to foreclose your mortgaged property. If the mortgage is foreclosed your mortgaged property will be sold by the Sheriff to pay off the mortgage debt. Once this matter has been referred to us for filing, even if you cure the default before a filing is made you will still have to pay the reasonable attorney's fees, actually incurred, up to $50.00. However, if legal proceedings are started against you, you will have to pay the reasonable attorney's fees even if they are over $50.00. Any attorney's fees will be added to whatever you owe our client, which may also include our reasonable costs. If you cure the default within the thirty day period, you will not be required to pay attorney fees. 221 E CHESTNUT ST LANCASTER, PA 17602 TEL 717 299 7254 WWW.HUBLAW.00M 390 E MAIN ST, SUITE 200 EPHRATA, PA 17522 TEL 717 738 7972 Mr. Michael P. Zielinski January 27, 2014 Page 2 We may also sue you personally for the unpaid principal balance and all other sums due under the mortgage. If you have not cured the default within the thirty day period and foreclosure proceedings have begun, you still have the right to cure the default and prevent the sale at any time up to one hour before the Sheriffs foreclosure sale. You may do so by paying the total amount of the unpaid monthly payments plus any late or other charges then due, as well as the reasonable attorney fees and costs connected with the foreclosure sale. It is estimated that the earliest date that such a Sheriffs sale could be held would be approximately September 24, 2014. A notice of the date of the Sheriff sale will be sent to you before the sale. Of course, the amount needed to cure the default will increase the longer you wait. You may find out at any time exactly what the required payment will be by calling us at the following number: (717) 299 -7254. This payment must be paid at the address stated above. You should realize that a Sheriffs sale will end your ownership of the mortgaged property and your right to remain in it. If you continue to live in the property after the Sheriffs sale, a lawsuit could be started to evict you. You have additional rights to help protect your interest in the property. YOU HAVE THE RIGHT TO SELL THE PROPERTY TO OBTAIN MONEY TO PAY OFF THE MORTGAGE DEBT, OR TO BORROW MONEY FROM ANOTHER LENDING INSTITUTION TO PAY OFF THIS DEBT. YOU MAY HAVE THE RIGHT TO SELL OR TRANSFER THE PROPERTY SUBJECT TO THE MORTGAGE TO A BUYER OR TRANSFEREE WHO WILL ASSUME THE MORTGAGE DEBT, PROVIDED THAT ALL THE OUTSTANDING PAYMENTS, CHARGES AND ATTORNEY FEES AND COSTS ARE PAID PRIOR TO OR AT THE SALE. If you cure the default, the mortgage will be restored to the same position as if no default had occurred. However, you are not entitled to this right to cure your default more than three times in any calendar year. Sincerely, Cy2�xc�n r7�a� Brandon S. Harter brandonh@hublaw.com BSH:c]a 0471504 1.DOCX cc: Ms. Carolyn G. McCarty Thomas W. Bergen, Esquire Exhibit D r i< HARTMAN UNDERHILL & BRUBAKER LLP ATTORNEYS AT LAW February 7, 2014 The Estate of Kimberly A. Zielinski c/o Daniel C. Herr, Esquire Herr & Low 234 North Duke Street P.O. Box 1533 Lancaster, PA 17608 -1533 Re: 342 Walton Street, Lemoyne, Pennsylvania ACT 6 NOTICE OF INTENTION TO FORECLOSE MORTGAGE Dear Mr. Herr: The MORTGAGE held by Carolyn G. McCarty on the property located at 342 Walton Street, Lemoyne, Pennsylvania, IS IN SERIOUS DEFAULT because your client, Kimberly A. Zielinski, has not made the monthly payments of One Thousand Two Hundred Dollars ($1,200) for the months from April 2009 through January 2012. Late charges (and other charges) have also accrued to this date in the amount of $4,080. The total amount now required to cure this default as of the date of this letter, is $44,880. Your client may cure this default within THIRTY (30) DAYS, of the date of this letter, by paying to us the above amount of $44,880, plus any additional monthly payments and late charges which may fall due during this period. Such payment must be made at this firm's offices at 221 East Chestnut Street, Lancaster, Pennsylvania 17602. If your client does not cure the default within THIRTY (30) DAYS, our client intends to exercise her right to accelerate the mortgage payments. This means that whatever is owing on the original amount borrowed will be considered due immediately and your client may lose the chance to pay off the original mortgage in monthly installments. If full payment of the amount of default is not made within THIRTY (30) DAYS, we have been instructed to start a lawsuit to foreclose the mortgaged property. If the mortgage is foreclosed the mortgaged property will be sold by the Sheriff to pay off the mortgage debt. Once this matter has been referred to us for filing, even if the default is cured before a filing is made your client will still have to pay the reasonable attorney's fees, actually incurred, up to $50.00. However, if legal proceedings are started against your client, your client will have to pay the reasonable attorney's fees even if they are over $50.00. Any attorney's fees will be added to whatever your client owes our client, which 221 E CHESTNUT ST LANCASTER, PA 17602 TEL 717 299 7254 WWW.HU8LAW.00M 390 E MAIN ST, SUITE 200 EPHRATA, PA 17522 TEL 717 738 7972 The Estate of Kimberly A. Zielinski c/o Daniel C. Herr, Esquire February 7, 2014 Page 2 may also include our reasonable costs. If the default is cured within the thirty day period, your client will not be required to pay attorney fees. Your client may also be sued directly for the unpaid principal balance and all other sums due under the mortgage. If the default is'not cured within the thirty day period and foreclosure proceedings have begun, your client still has the right to cure the default and prevent the sale at any time up to one hour before the Sheriffs foreclosure sale. Your client may do so by paying the total amount of the unpaid monthly payments plus any late or other charges then due, as well as the reasonable attorney fees and costs connected with the foreclosure sale. It is estimated that the earliest date that such a Sheriffs sale could be held would be approximately September 24, 2014. A notice of the date of the Sheriff sale will be sent to you before the sale. Of course, the amount needed to cure the default will increase the longer your client waits. You may find out what the required payment will be by calling us at the following number: (717) 299-7254. This payment must be paid at the address stated above. Please advise your client that a Sheriffs sale will end any ownership interest your client may have in the mortgaged property. Your client has additional rights to help protect its interest in the property. YOUR CLIENT MAY HAVE THE RIGHT TO SELL THE PROPERTY TO OBTAIN MONEY TO PAY OFF THE MORTGAGE DEBT, OR TO BORROW MONEY FROM ANOTHER LENDING INSTITUTION TO PAY OFF THIS DEBT. YOUR CLIENT MAY HAVE THE RIGHT TO SELL OR TRANSFER THE PROPERTY SUBJECT TO THE MORTGAGE TO A BUYER OR TRANSFEREE WHO WILL ASSUME THE MORTGAGE DEBT, PROVIDED THAT ALL THE OUTSTANDING PAYMENTS, CHARGES AND ATTORNEY FEES AND COSTS ARE PAID PRIOR TO OR AT THE SALE. If the default is cured, the mortgage will be restored to the same position as if no default had occurred. However, your client is not entitled to this right to cure the default more than three times in any calendar year. Sincerely, 614144.01 r)I 4171- Brandon S. Harter brndonh@hubIaw.com BSH:cla 007 I 5475.DOCX CC: Ms. Carolyn G. McCarty Thomas W. Bergen, Esquire John R. Beinhaur, Esquire CAROLYN G. McCARTY, Plaintiff(s) vs. MICHAEL P. ZIELINSKI, et al. Defendant(s) FORM 1 2 0 1 It AR 17 AM 10:4 -+ : IN THE COURT OF COMMON PLEAS OF , : CUMBERLAND COUNTY, PENNSYLV fYI � E���'�'IL CU�i('� PENNSYLVANIA Civil NOTICE OF RESIDENTIAL MORTGAGE FORECLOSURE DIVERSION PROGRAM You have been served with a foreclosure complaint that could cause you to lose your home. If you own and live in the residential property which is the subject of this foreclosure action, you may be able to participate in a court- supervised conciliation conference in an effort to resolve this matter with your lender. If you do not have 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 the 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 file a Request for Conciliation Conference with the Court, which must be filed with the Court within sixty (60) days of the service upon you of the foreclosure complaint. IF you do so and a conciliation conference is scheduled, you will have an opportunity to meet with a representative of your lender in an attempt to work 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 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 WISH TO SAVE YOUR HOME, YOU MUST ACT QUICKLY AND TAKE THE STEPS REQUIRED BY THIS NOTICE. THIS PROGRAM IS FREE. 3/ 3 / /I( Respectfully submitted: S28-*L66,-, Date Signature of Counsel 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 Please provide the following information to the best of your knowledge: CUSTOMERIPRIMARY APPLICATION Borrower name (s): Property Address: City: State: Zip: Is the property for sale? Yes ❑ No ❑ Listing date: Price: $ Realtor Name: Borrower Occupied: Yes ❑ No ❑ Mailing Address (if different) Realtor Phone: City: Phone Numbers: Home: Cell: Email: State: Office: Other: Zip: # of people in household: How long? CO BORROWER Mailing Address: City: Phone Numbers: Home: Cell: Email: State: Office: Other: Zip: # of people in household: 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: $ Date of Last Payment: Primary Reason for Default: Included Taxes and Insurance: Is the loan in Bankruptcy? Yes ❑ No ❑ If yes, provide names, location of court, case number & attorney: Assets Amount Owed: Value: Home: $ $ Other Real Estate: $ $ Retirement Funds: $ $ Investments: $ $ Checking: $ $ Savings: $ $ Other: $ $ Automobile #1: Model: Year: Amount owed: Value: Automobile #2: Mode: Year: Amount owed: Value: Other transportation (automobi|es, boats, motmrnc|es): Model: Year: Amount owed: Value: Monthly Income Name of Employers: 1. Monthly Gross Monthly Net Z. Monthly Gross Monthly Net 3. Monthly Gross Monthly Net Additional Income Description (not wages): l. Monthly Amount: Z. Monthly Amount: Borrower Pay Days: Co-Borrower Pay Days: Monthlv Expenses: (Please onlv include expenses vou are currentiv EXPENSE AMOUNT EXPENSE AMOUNT Mortgage Food 2'~yMortgege Utilities Car Payment(s) Condo/Neigh. Fees Auto Insurance Med. (not covered) Auto fuel/repairs Other Prop, Payment tnstaU, Loan Payment Cable TV ChUdSupport/AUm. Spending Money Day/Chi(dCmre/Tuit. Other Expenses Amount Available for Monthly Mortgage Payments Based on Income and Expenses: Have you been working with a Housing Counseling Agency? Yes E] No El If yes please provide the foliowing information: Counseling Agency: Counselor: Phone (Office): Email: Have you made application for Homeowners Emergency Mortgage Assistance Program (HEMAP) assistance? Yes�_ �_ No�� If yes, please indicate the status of the application: Have you had any prior negotiations with your lender or lender's loan servicing company to resolve your delinquency? Please provide the following information, if know, regarding your lender or lender's loan servicing company: Lender's Contact (Name): Phone: Servicing Company (Name): Contact: Phone: AUTHORIZATION I/VVe , authorize the above named to use/refer this inforrnation to my lender/servicer for the sole purpose of evaluating my financial situation for possible mortgage options. |/we understand that |/me am/are under no obligation to use the services provided by the above named Borrower Signature Borrower Signature Date Date Please forward this document along with the following information to lender and lender counsel: ✓ Proof on income ✓ Past 2 bank statements ✓ Proof of any expected income for the Iast 45 days ✓ Copy of a current utility bill ✓ Letter explaining reason for clelinquency and any supporting documentation ✓ (hardship letter) Listing agreement (if property is currently on the market) V Copy of 2 years of federal income tax returns V Copy of deed HERR & LOW, P.C. Daniel S. Herr, Esquire Attorney I.D. No. 27465 234 North Duke Street P.O. Box 1533 Lancaster, PA 17608-1533 (717) 397-7544/(717) 397-8227 (fax) Attorneys for Defendant, Victoria L. Myers, as Executrix of the Estate of Kimberly A. Zielinski CAROLYN G. McCARTY, Plaintiff v. MICHAEL P. ZIELINSKI and VICTORIA L. MYERS, as Executrix of the ESTATE OF KIMBERLY A. ZIELINSKI Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 14-1497 Civil Term : ACTION IN MORTGAGE FORECLOSURE ACCEPTANCE OF SERVICE I hereby accept service of the Complaint in Mortgage captioned matter on behalf of Defendant, Victoria L. Myers, Kimberly A. Zielinski, and certify that I authorized to do so. Date: (00720947,1 } HERR & LOW, P.C. .!` By: )414/60-1 Foreclosure in the dipvc:E. rn ci? as Executrix of th--7e. tat-e3o C • 1:1 C.4) C-; Daniel S. Herr, Esquire Attorney I.D. No. 27465 Attorneys for Defendant, Victoria L. Myers as Executrix of the Estate of Kimberly A. Zielinski HARTMAN UNDERHILL & BRUBAKER, LLC Brandon S. Harter, Esquire Attorney I.D. No. 307676 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254/(717) 299-3160 (facsimile) 7 �t`C�r�lF�f-rlOT�j �.�,��- ?0ltr„ �� THii,• r liys PN I' � 4 Attorneys for Plaintif pE ERSAND COUNTY Y CAROLYN G. McCARTY, v. : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW MICHAEL P. ZIELINSKI and VICTORIA L. MYERS, as Executrix of the ESTATE OF KIMBERLY A. ZIELINSKI : NO. 14-1497 Civil Term : ACTION IN MORTGAGE FORECLOSURE Defendants PRAECIPE TO REINSTATE TO THE PROTHONOTARY: Pursuant to Pa. R.C.P. 401(b)(1), please reinstate the Complaint in Mortgage Foreclosure filed on March 14, 2014, in the above -captioned matter. HARTMAN UNDERHILL & BRUBAKER, LLC Date: 7/157/41 By: 2I Brandon S. Harter, Esquire Attorney I.D. No. 307676 Attorneys for Plaintiff AND NOW, this / 7day of July, 2014, the Complaint in Mortgage Foreclosure is reinstated as above directed. 00734484.DOCX , Prothonotary SHERIFF'S OFFICE OF CUMBERLAND COUNTY RonnyRAnderson iLED-OFFICE Sheriff (( OF THE PROTHONOTARY Jody S Smith Chief Deputy2014 AUG _5 AM_ 50 *+ �f Richard W Stewart Solicitor OFFICE OF THE E'NEFIFF CUMBERLAND COUNTY PENNSYLVANIA Carolyn G McCarty vs. Michael P Zielinski Case Number 2014-1497 SHERIFF'S RETURN OF SERVICE 07/28/2014 05:41 PM - Deputy Dawn Kell, 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: Michael P Zielinski at 342 Walton Street, Lemoyne Borough, Lemoyne, PA 17043. atoll gs, 11 DAWN KELL, DEPUTY 07/30/2014 Sheriff Ronny R Anderson, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Occupant, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Notice of Residential Mortgage Foreclosure Diversion Program and Complaint in Mortgage Foreclosure as "Not Served" at 342 Walton Street, Lemoyne Borough, Lemoyne, PA 17043. There are no Occupants other than the defendant Michael P. Zielinski. SHERIFF COST: $46.57 SO ANSWERS, July 30, 2014 (c) CountySuite Sheriff, Teleeoett, Inc. RNY R ANDERSON, SHERIFF HARTMAN UNDERHILL & BRUBAKER, LLC Brandon S. Harter, Esquire Attorney I.D. No. 307676 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254/(717) 299-3160 (facsimile) CAROLYN G. McCARTY, v. ORIGINAL No. 14-1497 Civil Term Attorneys for Plaintiff c : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW MICHAEL P. ZIELINSKI and VICTORIA L. MYERS, as Executrix of the ESTATE OF KIMBERLY A. ZIELINSKI : NO. 14-1497 Civil Term : ACTION IN MORTGAGE FORECLOSURE Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 19, 2014, I served Notices of Default Pursuant to Pa.R.C.P. 237.5 (copies attached) upon the person(s) and in the manner indicated below. Service by First Class Mail and addressed as follows: Michael P. Zielinski 342 Walton Street Lemoyne, PA 17043 {00737967.1 } Kimberly A. Zielinski Estate c/o Daniel S. Herr, Esquire Herr & Low 234 North Duke Street P.O. Box 1533 Lancaster, PA 17608-1533 HARTMAN UNDERHILL & BRUBAKER, LLC By: Brandon S. Harter, Esquire Attorney I.D. No. 307676 Attorneys for Plaintiff c,. HARTMAN UNDERHILL & BRUBAKER, LLC Brandon S. Harter, Esquire Attorney I.D. No. 307676 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254/(717) 299-3160 (facsimile) No. 14-1497 Civil Term Attorneys for Plaintiff CAROLYN G. McCARTY, Plaintiff v. MICHAEL P. ZIELINSKI and VICTORIA L. MYERS, as Executrix of the ESTATE OF KIMBERLY A. ZIELINSKI Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 14-1497 Civil Term : ACTION IN MORTGAGE FORECLOSURE NOTICE OF DEFAULT PURSUANT TO Pa.R.C.P. 237.5 TO: Kimberly A. Zielinski Estate c/o Daniel S. Herr, Esquire Herr & Low 234 North Duke Street P.O. Box 1533 Lancaster, PA 17608-1533 Date of Notice: August 19, 2014 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. {00737966.1 } 1 No. 14-1497 Civil Term 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 Bar Association 32 S. Bedford Street Carlisle, Pennsylvania Telephone: (717) 249-3166 Date: G /i / l( HARTMAN UNDERHILL & BRUBAKER, LLC By:&4J 2L Brandon S. Harter, Esquire Attorney I.D. No. 307676 Attorneys for Plaintiff {00737966.1 } 2 HARTMAN UNDERHILL & BRUBAKER, LLC Brandon S. Harter, Esquire Attorney I.D. No. 307676 221 East Chestnut Street Lancaster, PA 17602 (717) 299-7254/(717) 299-3160 (facsimile) No. 14-1497 Civil Term Attorneys for Plaintiff CAROLYN G. McCARTY, Plaintiff v. MICHAEL P. ZIELINSKI and VICTORIA L. MYERS, as Executrix of the ESTATE OF KIMBERLY A. ZIELINSKI Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 14-1497 Civil Term : ACTION IN MORTGAGE FORECLOSURE NOTICE OF DEFAULT PURSUANT TO Pa.R.C.P. 237.5 TO: Michael P. Zielinski 342 Walton Street Lemoyne, PA 17043 Date of Notice: August 19, 2014 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY {00737968.1 } 1 No. 14-1497 Civil Term OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania Telephone: (717) 249-3166 Date: // 1 / ! L/ HARTMAN UNDERHILL & BRUBAKER, LLC By: /iReJ.- 71�t {00737968.1 } 2 Brandon S. Harter, Esquire Attorney I.D. No. 307676 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CAROLYN G. McCARTY, Civil Plaintiff No. 14-1497 = VS. N c Michael Patrick Zielinski and CD VICTORIA L. MYERS, as Administratix of the ESTATE OF KIMBERLY A. ZIELINSKI, p Defendants ACTION IN MORTAGE FORECL6}UI PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter my appearance on behalf of Defendant,Michael Patrick Zielinski, in the action referenced above. A,N Datech K h, Esq. PA ttorney number 98956 6 Clouser Road Mechanicsburg, PA 17055 717-691-1882 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CAROLYN G. McCARTY, Civil c; Plaintiff No. 14-1497 MOD � - VS. r fir— t_ R.)co CD e ., T> Michael Patrick Zielinski and < ' VICTORIA L. MYERS, as _}c' Administratix of the ESTATE OF ' KIMBERLY A. ZIELINSKI, Defendants ACTION IN MORTAGE FORECLOSURE ANSWER TO COMPLAINT IN MORTAGE FORECLOSURE 1. Admitted,to the best of knowledge and belief. 2. Admitted. 3. Admitted,to the best of knowledge and belief. 4. Admitted as to the transaction date. Denied that the money was a loan. The $200,000 was a gift to Ms. McCarty's daughter, Kimberly Zielinski and her husband, Michael Patrick Zielinski. The purpose of the gift was to enable the purchase of a marital home for the Zielinskis. 5. Admitted as to the accuracy of Exhibit A. Denied as to first statement in the paragraph.No request for payment was ever made to the Zielinskis. That accorded with the gift status of the money. 6. Admitted as to the recordation of the document and the accuracy of Exhibit B. Denied as to the purpose of the Security interest. The • security interest was never meant to provide income or enforce an obligation on the part of the Zielinskis,but simply to prevent an unencumbered sale of the property by the Zielinskis. 7. Admitted. 8. Admitted. 9. Admitted with the further explanation that the note was not intended to become an enforcement vehicle. 10. Admitted. 11. Neither admitted nor denied. Respondent is without knowledge of the current ownership of the Mortgage. 12. Admitted,though the nature of the mortgage is disputed. 13. Admitted with the further explanation that defendant did not make the payments referred to because Plaintiff had bought the house for her daughter and son-in-law as a gift. In the nearly five years between April 1, 2009 and January 27, 2014 Plaintiff made no request for any payment. 14. Admitted, with the further explanation that Plaintiff had treated the house purchase as a gift until that letter was sent. 15. Neither admitted nor denied. Michael Zielinski has no knowledge if other Defendant received the letter mentioned. 16. The documents speak for themselves. 17. Neither admitted nor denied. Defendant is not privy to Plaintiffs financial calculations. i For the reasons stated above,the Defendant Michael Patrick Zielinski asks this court to deny the Plaintiffs requests for an order of either a monetary award or foreclosure. t 2©/ Date OAAttorney Koch, number 98956 6 Clouser Road Mechanicsburg, PA 17055 717-691-1882 VERIFICATION I, Michael P. Zielinski, verify that the statements made in the foregoing document are true and correct. I understand that any false statements contained herein are subject to the penalties of 18 Pa.C.S. § 4904,relating to unsworn falsification to authorities for any false statements. Z-7 Dat Michael P.Zielinski �yI I 4 CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copies of the Praecipe for Entry of Appearance and the Answer to Complaint in Mortgage Foreclosure, case 14-1497,upon the plaintiff,by depositing same in the United States Mail, first class mail,postage prepaid, on the 28th day of August 2014, from Mechanicsburg, Pennsylvania, addressed as follows: Hartman Underhill& Brubaker, LLC attention: Brandon S. Harter, Esquire 221 E. Chestnut Street Lancaster, PA 17602 RESPECTFULLY SUBMITTED, Icdoch, Esquire 6 Clouser Road Mechanicsburg, PA 17055 (717) 691-1882 ID# 92956