HomeMy WebLinkAbout05-3175PHELAN HALI.INAN & SCHMIEG, LLP
LAWRENCE T. PFIELAN, ESQ., ld. No. 32227
FRANCIS S. HALLINAN, ESQ., Id. No. 62695
ONE PENN CENTER PLAZA, SUITE 1400
PHILADELPHIA, PA 19103
(215) 563-7000
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS
TRUSTEE OF AMERIQUEST MORTGAGE SECURITIES,
INC., ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES 2003-1 1 UNDER THE
POOLING AND SERVICING AGREEMENT DATED
AS OF NOVEMBER 1, 2003
505 CITY PARKWAY WEST
SUITE 100
ORANGE, CA 92868
Plaintiff
v.
DIANA K. KINAVEY
48 SUSSEX ROAD
CAMP HILL, PA 170 ] I
Defendant
ATTOKNEY FOR PLAINTIFF
COURT OF COMMON PLEAS
CIVIL DIVISION
TF,RM
NO. O S -,3I ~ 1. l U ~ ~ ~-~
CUMBERLAND COUNTY
CIVIL ACTION -LAW
COMPLAINT IN MORTGAGE FORECLOSURE
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 se[ 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 [he 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.
Lawyer Referral Service
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(800)990-9108
File N: 117958
IF THIS ]S THE FIRST NOTICE THAT YOU }IAVE RECEIVED FROM
THIS OFFICE, BE ADV}SED THAT:
PURSUANT TO THE FAIR DEBT COLLECTION
PRACTICES ACT, IS U.S.C. § 1692 et seq. (1977),
DEFENDANT(S) MAY DISPUTE THE VALIDITY OF THE
DEBT OR ANY PORTION THEREOF. IF DEFENDANT(S)
DO SO IN WRITING WITHIN THIRTY (30) DAYS OF
RECEIPT OF THIS PLEADING, COUNSEL FOR
PLAINTIFF WILL OBTAIN AND PROVIDE
DEFENDANT(S) WITH WRITTEN VERIFICATION
THEREOF; OTHERWISE, THE DEBT WILL BE ASSUMED
TO BE VALID. LIKEWISE, IF REQUESTED WITHIN
THIRTY (30) DAYS OF RECEIPT OF THIS PLEADING,
COUNSEL FOR PLAINTIFF WILL SEND DEFENDANT(S)
THE NAME AND ADDRESS OF THE ORIGINAL
CREDITOR, IF DIFFERENT FROM ABOVE.
THE LAW DOES NOT REQUIRE US TO WAIT UNTIL
THE END OF THE THIRTY (30) DAY PERIOD
FOLLOWING FIRST CONTACT WITH YOU BEFORE
SUING YOU TO COLLECT THIS DEBT. EVEN THOUGH
THE LAW PROVIDES THAT YOUR ANSWER TO THIS
COMPLAINT IS TO BE FILED IN THIS ACTION WITHIN
TWENTY (20) DAYS, YOU MAY OBTAIN AN EXTENSION
OF THAT TIME. FURTHERMORE, NO REQUEST WILL
BE MADE TO THE COURT FOR A JUDGMENT UNTIL
THE EXPIRATION OF THIRTY (30) DAYS AFTER YOU
HAVE RECEIVED THIS COMPLAINT. HOWEVER, IF
YOU REQUEST PROOF OF THE DEBT OR THE NAME
AND ADDRESS OF THE ORIGINAL CREDITOR WITHIN
THE THIRTY (30) DAY PERIOD THAT BEGINS UPON
YOUR RECEIPT OF THIS COMPLAINT, THE LAW
REQUIRES US TO CEASE OUR EFFORTS (THROUGH
LITIGATION OR OTHERWISE) TO COLLECT THE DEBT
UNTIL WE MAIL THE REQUESTED INFORMATION TO
YOU. YOU SHOULD CONSULT AN ATTORNEY FOR
ADVICE CONCERNING YOUR RIGHTS AND
OBLIGATIONS IN TH[S SUIT.
IF YOU HAVE FILED BANKRUPTCY AND RECEIVED A
DISCHARGE, THIS IS NOT AN ATTEMPT TO COLLECT
A DEBT. IT IS AN ACTION TO ENFORCE A LIEN ON
REAL ESTATE.
Fle 8~. 11"(958
Plaintiff is
DEUTSCHE BANK NA'T'IONAL TRUST COMPANY, AS
TRUSTEE OF AMERIQUEST MORTGAGE SECURI"PIES,
INC., ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES 2003-1 I UNDER THE
POOLING AND SERVICING AGREEMENT DATED
AS OF NOVEMBER 1. 2003
505 CITY PARKWAY WEST
SUITE 100
ORANGE, CA 92868
2. The name(s) and last known address(es) of the Defendant(s) are:
DIANA K. KINAVEY
48 SUSSEX ROAD
CAMP HILL, PA 1701 I
who is/are the mortgagor(s) and real owner(s) of the property hereinafter described.
3. On 09/11/2003 mortgagor(s) made, executed and delivered a mortgage upon the premises
hereinafter described to AMERIQUEST MORTGAGE COMPANY which mortgage is recorded
in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No. 1836, Page:
1661. PLAINTIFF is now [he legal owner of the mortgage and is in the process of formalizing an
assignment of same.
4. The premises subject to said mortgage is described as attached.
5. The mortgage is in default because monthly payments of principal and interest upon said
mortgage due 12/01 /2004 and each month [hereafter 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.
Flc #: 117958
6. The following amounts are due on the mortgage:
Principal Balance $92,19S.OS
Interest 6,104.03
11/01/2004 through 06/15/2005
(Per Diem $26.89)
Attorney's Fees 1,250.00
Cumulative Tate Charges 356.16
09/1 I /2003 to 06/15/2005
Cost of Suit and Title Search $ SS0.00
Subtotal $ ]OQ4SS.24
Escrow
Credit 0.00
Deficit 1,618.42
Subtotal $ 1,618.42
TOTAL $ 102,073.66
The attorney's fees set forth above are in conformity with [he mortgage documents and
Pennsylvania law, and will be collected in the event of a third party purchaser at Sheriffs Sale. If
the Mortgage is reinstated prior to the Sale, reasonable attomey's fees will be charged.
8. Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowner's Emergency
Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as
required by the mortgage document, as applicab]e, have been sent to the Defendant(s) on the
date(s) set forth thereon, and [he temporary stay as provided by said notice has temrinated 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.
This action does not come under Act 6 of 1974 because the original mortgage amount exceeds
$50,000.
WHEREFORE, PLAINTIFF demands an in rem Judgment against the Defendant(s) in the sum of $
102,073.66, together with interest from 06/1 S/2005 at the rate of $26.89 per diem to the date of
Judgment, and other costs and charges collectible under the mortgage and for the foreclosure and sale of
the mortgaged property.
PHELA ALLINAN & SCHMIEG, L~~~~ F,~~`'~~
By: /s/Francis S. Hallman ///~ 7G/%
LAWRENCE T. PHELAN, ESQUIRE
FRANCIS S. HALLINAN, ESQUIRE
Attorneys for Plaintiff
r~ien: mess
LEGAL llESCRIPTION
ALL THAT CERTAIN piece or parcel of land with the buildings and improvements thereon erected situate in Lower
Allen Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit:
BEGINNING at a point on the southerly line of Sussex Road, which point is five hundred thirteen and sixty-eight
hundredths (513.68) feet eastwardly of the southeasterly corner of Courtland and Sussex Road and at the dividing line
between Lot Nos. 88 and 89, Tract No. 3, on the hereinafter mentioned Plan of Lots; thence along the southerly line of
Sussex Road, north 68 degrees 7 minutes east, sixty (60) feet to a point at dividing line between Lots Nos. 89 and 90 on
said Plan; thence along said dividing line in a southerly direction, one hundred twenty (120) feet to a point on the
northerly of Lot No. 78 on said Plan; thence along the northerly line of Lots Nos. 78 and 79 on said Plan in a westerly
direction, sixty (60) feet to a paint at dividing line between Lots Nos. 88 and 89 on said Plan; thence along said dividing
line in a northerly direction, one hundred twenty (120) feet to a point, the Place of BEGINNING.
BEING Lot No. 89, Tract No. 3, on Plan of lots known as Cumberland Park, which Plan is recorded in the Cumberland
County Recorder's Office in Plan Book 6, Page 3, and being known as 48 Sussex Road.
BEING THE SAME PREMISES WHICH Mohammad U. Farooq and Durla N. I.athia & Hasmukh P. Shah (A/IUA Hasu
P. Shah) and Harsha H. Shah, husband and wife, by Deed dated March 28, 1999 and recorded in The Office of The
Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book 198, Page 641, granted and conveyed
unto Denton B. Bord, Jr., an adult individual, Grantor herein.
PROPERTY BEING: 48 SUSSEX ROAD
Filc k: 117958
VERIFICATION
Nanci Jimenez hereby states that he/she is Foreclosure Supervisor of AMERIQUEST
MORTGAGE COMPANY mortgage servicing agent for Plaintiff in this matter, that he/she is
authorized to take this Verification, and that the statements made in the foregoing Civil Action in
Mortgage Foreclosure are true and correct to the best of his/her knowledge, information and belief.
The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec.
4904 relating to unswom falsification to authorities.
DATE: ~ ~~ S
-6c),
u't
~- C7 ~a
~-,
~
~
:
`r ~ ~-- N -' ~)
~ }
W
`s
`^3. /~ ~r.
-i1
~~
C~
T _ _y
~
_ '~ .~1
~-~ ,
~ .~ ~~
~~
Geoffrey M. Biringer, Esquire
MidPenn Legal Services
8 Irvine Row
Carlisle, PA 17013
(717)243-9400, Ext.12
b~ irin er ,midpenn.org
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF : IN THE COUP.T OF COMMON PLEAS
AMERIQUEST MORTGAGE : OF CUMBERLAND COUNTY,
SECURTTIES INC., ASSET BACKED :PENNSYLVANIA
PASS-THROUGH CERTIFICATE SERIES:
2003-11UNDER THE POOLING AND : No. OS-3175 CNIL TERM
SERVICING AGREEMENT DATED AS
OF NOVEMBER 1, 2003 505 CITY :CNIL ACTION -LAW
PARKWAY WEST SUITE 100 ORANGE
CA 92868
Plaintiff
v.
DIANA K. KINAVEY
48 SUSSEX ROAD
CAMP HILL, PA 17011
Defendant
DEFENDANT'S ANSWER TO PLAINTI[FF'S COMPLAINT
WITH NEW MATTER and AFFIRMATIVE DEFENSES
To: DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF
AMERIQUEST MORTGAGE
SECURITIES INC., ASSET BACKED
PASS-THROUGH CERTIFICATE SERIES
2003-11UNDER THE POOLING AND
SERVICING AGREEMENT DATED AS
OF NOVEMBER 1, 2003 505 CITY
PARKWAY WEST SUITE 100 ORANGE
CA 42868
You are hereby notified to file a written response to the enclosed Answer
to Plaintiff s Complaint with New Matter and Affirmative Defenses within twenty
(20) days from service hereof or a judgment maybe entered against you .
By. ~r/~
Geoffrey M. Biringer, Esq.
MidPenn Legal Services
8 Irvine Row
Car]isle, PA 17013
(717)243-9400
Sup. Ct. ID# 18040
Geoffrey M. Biringer, Esquire
MidPenn Legal Services
8 Irvine Row
Carlisle, PA 17013
(717)243-9400, Ext.12
bg iringer(u~midpenn.org
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF
AMERIQUEST MORTGAGE
COUNTY,PENNSYLVANIA
SECURITIES INC., ASSET BACKED
PASS-THROUGH CERTIFICATE SERIES,
2003-11UNDER THE POOLING AND
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND
No. OS-3175 CNIL TERM
SERVICING AGREEMENT DATED AS
OF NOVEMBER 1, 2003 505 CITY :CIVIL ACTION -LAW
PARKWAY WEST SUITE 100 ORANGE
CA 92868
Plaintiff
v.
DIANA K. KINAVEY
48 SUSSEX ROAD
CAMP HILL, PA 17011
Defendant
DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT
WITH NEW MATTER and AFFIRMATIVE DEFENSES
Defendant Diana K. Kinavey, by and through her attorneys at MidPenn Legal
Services Inc., sets forth the following response to the Complaint in Mortgage Foreclosure
filed by the Plaintiff.
1. Denied. After reasonable investigation, Defendant is without lrnowledge
sufficient to form a belief as to the truth of the averment, and proof thereof is demanded
at trial. For further response, see New Matter below.
2. Admitted.
3. Admitted in part and denied in part as follows. 'Che authenticity of the
mortgage documents is admitted. Their enforceability is denied for the reasons outlined
in the affirmative defenses set out in New Matter below. Furthermore, it is denied that
said mortgage was made on September 11, 2003; but rather on information and belief,
Defendant believes that said mortgage was made on September 15, 2003. After
reasonable investigation, Defendant is without knowledge sufficient to form a belief as
the truth of the remainder of the averment. For further response, see New Matter below.
4. The authenticity of the description is admitted; hawever the enforceability of
the mortgage is denied for the reasons set forth in New Matter below.
5. Defendant admits being behind several payments, but denies all allegations
regarding default, as the note and the mortgage are not enforceable.
6. Denied. Defendant denies owing any monies to Pllaintiff for the reasons
outlined in the affirmative defenses set forth in New Matter below.
7. Denied. Defendant denies that Plaintiff is entitled to collect any attorneys'
fees.
8. Admitted that Notice of Homeowner's Emergency Assistance Program was
sent by the Plaintiff and that Defendant was denied assistance by PHFt~,. The remainder
of the averment is denied.
9. The averment contained in this paragraph is a conclusion of ]aw to which no
responsive pleading is required.
WHEREFORE, Defendant demands that Plaintiffls case be dismissed and that
judgment be entered in favor of the Defendant and against the Plaintiff.
NEW MATTEP~
10. Paragraphs 1-9 are incorporated herein by reference hereto.
11. On August 16, 2003, Defendant entered into an Agreement of Sale to
purchase a mobile home for $29,000 as investment property.
12. At the time, Defendant put $2,900 as a down payment on this home and
sought to finance at least $20,000 of the remainder of the purchase price by tapping into
the equity of her residence.
13. At that time, Defendant had a ls` mortgage on her home in the approximate
amount of $58,479 at a I S-year fixed rate of 7.49% with Member's ls` Federal Credit
Union. See attached, Exhibit 1
14. Defendant also had a $10,000 home equity line of credit with Citizens Bank
bearing a variable interest rate, which at the time as only 3.75%. In September 2003, this
line of credit was drawn at $9,978.10. See attached, Exhibit 2.
15. Her total indebtedness secured by her residence,lherefore, was approximately
$68,457.10
16. Based upon information and belief, Defendant's residence had a mazket value
of approximately $100,000 in September 2003.
17. Defendant initially sought to refinance her home through Member's 15`, but
was told that her credit was not sufficient to meet their criteriai. Consequently, Defendant
contacted Ameriquest, Plaintiff herein, and requested a loan tl.~at would give her $20,000
cash to use for the purchase of the mobile home.
18. Defendant contacted Ameriquest because of their advertising in the phone
book and on television.
19. Defendant spoke to one of Plaintiff's agents, Janet Zelt, who informed
Defendant that the loan would be "no problem," that it cou]'.d be done quickly, and at a
better rate than the one that she currently had with Member's ls`.
20. After a few initial phone conversations, Ms. Zelt informed Defendant that in
order to get the loan that she desired that Ameriquest would. have to pay off her home
equity line of credit with Citizens Bank. Defendant did not want Ameriquest to do this,
but reluctantly agreed after she was told that the line was merely being paid down and
that it would still be open and available in case she needed to draw on it for emergencies.
21. A few days before closing, Defendant was infonned that Ameriquest could
not provide her with $20,000 in cash and that she would onl~r be able to get
approximately $8500 at closing. Plaintiff also informed Defendant that loan would be a
higher interest rate than her existing loan. When Defendant asked about the high interest
rate, Ms. Zelt answered by asking Plaintiff "you need the loan don't you?
22. Defendant became angry and informed Ameriquest that she did not want this
loan if that was al] she was getting. In order to save the loan, Ms. Zelt, acting in her
capacity as Plaintiff's loan officer, told Plaintiff that they could get her a $10,000 line of
credit and that she could use it plus her already existing $10,0001ine of credit from
Citizens Bank to finance the purchase of her mobile home. Still angry, but realizing that
her options were few, Defendant acquiesced and allowed the loan to close.
23. Settlement occurred on September 15, 2003 at Plaintiff s residence. Based on
information and belief, the closing agent was Miriam Roman-Carvajal who acted at all
times as an agent for Ameriquest.
24. Instead of receiving the loan that she expected., netting her $20,000,
Defendant received a variable rate interest loan of 10.50%, netting $8,255, a total loan
amount of $92,000 and a monthly payment of $840, rather than the $647.00 she was then
paying.
25. In the course of signing the closing papers, Def<;ndant noticed that many of
the lines were pre-dated with "September 11, 2003" written in the date lines. In
particulaz, Defendant noticed that her Notice of Right to Ca~icel listed that date and listed
the date of "September 15, 2003" as the end of her three-day statutory right to cancel.
Defendant thought that this was odd because the closing occurred on September 15,
2003. When she asked the closing agent, who was an agent of Ameriquest, the closing
agent said "well you aren't going to cancel the loan are you?"
26. After signing the closing papers, Defendant asked the closing agent where her
line of credit was. The closing agent told Defendant that "he did not know what she was
talking about," but that if Janet Zelt said that it was going to happen, that it would and
that she should call Janet directly.
27, After closing, Defendant made various calls to Janet Zelt at Ameriquest and
left various voice mail messages for her. Defendant's calls went unreturned.
28. Eventually, Defendant was informed by an Ameriquest agent, whose identity
will be ascertained through discovery, that Ameriquest would not be getting her a line of
credit and that she was stuck with the loan product that she got.
29. In the course of this transaction, Defendant relied on the representations from
Ms. Zelt and other Ameriquest agents that she would be able to get $20,000 as a
consequence of this refinancing. Given the circumstance behind the refinancing, the
volume of documents presented to her at closing, and the fact that she was not presented
a reasonable opportunity to read these documents, Defendant's reliance on these
representations and assurances was reasonable.
30. In the end, the loan at issue provided no economic benefit to Defendant and
merely served to economically benefit Ameriquest and its agents.
31. One of the ways that Ameriquest masked the overall unconscionable nature of
this loan was the omission of a tax and insurance escrow from the monthly payment
obligations, thereby misrepresenting the monthly housing costs proposed.
32. Prior to the consummation of this loan transaction, Defendant had a spotty
history of making her property tax payments in a timely manner, though she was always
able to make payment arrangements.
33. At some point in September 2004, Defendant received notice from
Ameriquest that they were going to pay her delinquent taxes and force place an escrow
account if she did not pay them in full.
34. At the time, Defendant was making payments on her 2003 taxes. She had not
yet paid 2004 taxes because they were not due until December 31, 2004. See attached,
Exhibit 3
35. Defendant called Ameriquest and told them that she was making payments
and not to impose escrow on her account. She also had a representative from the
Cumberland County Tax Claim Bureau ("Tax Bureau") fax to Ameriquest a statement
showing that her 2003 taxes had a balance of $389.17 as o:f September 13, 2004, See
attached, Exhibit 4.
36. Despite having this information, and without any future contact with either
Defendant or the Tax Bureau, Ameriquest paid $486.83 towards Defendant's 2003 taxes
and $1265.55 for Defendant's 2004 taxes and imposed an escrow account upon
Defendant.
37. After receiving notice of this action, Defendant: went to the Tax Bureau and
had a conference call with Ameriquest. During that conversation, the Tax Bureau again
informed Ameriquest that Defendant had a payment plan for her 2003 taxes and that the
Tax Bureau would be sending a refund to Ameriquest. The Tax Bureau also informed
Ameriquest that the 2004 taxes were not due at the time they were paid, but that they
could not issue a refund because they were paid in full.
38. In a letter drafted to the Pennsylvania's Office of Attorney Genera] in
response to a complaint by Defendant, Ameriquest admitted that the imposition of escrow
for the 2004 taxes when they were not then due was in error lby offering that it would
accept a refund of these monies from the Tax Bureau if it could be arranged. See
attached, Exhibit 5.
39. As a result of the forced place escrow account, Defendant's monthly
payments went from $847.97 per month to $1093.77 per month.
40. The so called underlying "default" in this case is in large part due to the
increased monthly payment amount, as it was only after her monthly payments jumped to
over $1000 per month that Defendant began to miss her payments.
FIRST AFFIRMATIVE DEFEINSE
I. TRUTH IN LENDING
41. Paragraphs 1-40 are incorporated herein by reference hereto.
42. Plaintiff violated the federal Truth-in-Lending Act and Reg. Z, by:
a. by failing to supply the notice of recision as required by Reg
Z.226.5(a)(1) and 226.17(a)(1) in a timely manner.
b. by unilaterally imposing a waiver of the right of recision on
Defendant, in violation of 15 U.S.C.1635(d); Reg Z. §226.23(e).
43. Pursuant to the Truth-in-Lending Act, Ms. Kinavey had an absolute right to
cancel the transaction for three business days after the transaction, or within three
business days of receiving proper disclosures from the Plaintiff, after which she would
not be responsible for any charge or penalty.
44. Ms. Kinavey therefore, elects to rescind the transaction between herself
and Plaintiff, pursuant to her continuing right of recision.
45. Pursuant to 15 U.S.C. § 1635(b), when a consumer elects to rescind pursuant
to the Truth-in Lending Act, and security interest in connection with the transaction
automatically becomes void.
46. Pursuant to IS U.S.C. §1635(b), when a consumer elects to rescind pursuant
to the Truth-in-Lending Act, the consumer is not liable for any finance charge or other
charge.
47. The mortgage that is the subject of this foreclosure was taken in connection
with that transaction that Ms. Kinavey elected to rescind.
48. Since the mortgage is now void, this foreclosure case should be dismissed.
WHEREFORE, Defendant requests that the Complaint be dismissed with
prejudice, and that she be awarded actual expenses of litigation and any other relief that
the Court deems just and proper.
SECOND AFFIRMATIVE DEFENSE
II. DECEPTIVE PRACTICES
49. Paragraphs 1-48 are incorporated herein by reference hereto.
50. The misrepresentations, omissions, and conduct described above were unfair
and deceptive practices within the meaning of the Pennsylvemia Consumer Protection
Law ("CPL"), 73 P,S. §201-1 to 9.3.
51. Ameriquest's conduct constituted "unfair and deceptive acts and practices"
prohibited by Pennsylvania's CPL statute. Ms. Kinavey suffered damages, the exact
extent of which will be developed by discovery, but including, and not limited to,
excessive interest, loan closing costs, finance charges, illegal points and fees, late
charges, and unnecessary forced placement of tax escrow.
WHEREFORE, Defendant Diana Kinavey prays that this Honorable Court
dismiss Plaintiff's Complaint, with prejudice, or in the alternative, reduce the amount
owed by Defendant by the amount of treble damages available under the "CPL" and
award any other relief that the Court deems just and proper.
THIRD AFFIRMATIVE DEFENSE
III. UNCONSCIONABILITY
52. Paragraphs 1-51 are incorporated herein by reference.
53. Ms. Kinavey could not have realistically read, reviewed, and understood the
voluminous loan documents presented to her at the closing; at her home, presented by an
agent or agents of Plaintiff. Defendant was repeatedly assured that the loan was suitable
and appropriate as it had been described, being a better loan than she had, netting her the
money she needed and at a fixed rate. Ms. Kinavey relied on Plaintiff's agent as he held
himself out to be a knowledgeable adviser and not merely a loan salesman.
54. The loan, however, was completely inappropriate and unsuitable for Ms.
Kinavey, and placed her at risk of foreclosure.
55. The interest rate was 10.5% variable, rather than her current loan at 7.49%
fixed. The one-way variable rate (up) was risky, one-sided and unfavorable to the
Defendant. The Defendant asked for $20,000 cash out, but ,got only $8,255, making it
impossible to purchase the mobile home she wanted.
56. This home equity loan was highly likely to result in default and foreclosure, a
fact the lender knew or should have known.
57. Ameriquest drafted all the documents for the loan, and offered the Defendant
no meaningful choice regarding the loan.
58. The terms of the loan were grossly one-sied and umfavorable to Ms. Kinavey.
WHEREFORE, Defendant requests this Court enter judgement in her favor and
against Plaintiff, and grant any other relief as is just and proper.
FOURTH AFFIRMATIVE DEFENE~E
IV. COMMON LAW FRAUD
59. Pazagraphs 1-58 are incorporated herein by reference hereto.
60. Plaintiff and its agents made misrepresentations to Ms.Kinavey, as set forth
above, including, but not limited to, statements that they would obtain a loan that would
benefit her, lower her monthly payment, and provide her enough additional cash to
purchase a mobile home.
61. The misrepresentations were material in nature, as they concerned the basic
teens and benefits of the loan.
62. Ameriquest and its representatives knew that the representations were false at
the time they were made.
63. The misrepresentations and omissions were mad'.e with the intent to induce
Ms. Kinavey's reliance and enter the transaction despite the fact that they were not in he
best interests.
64. Ms. Kinavey relied on these misrepresentations to her detriment.
WHEREFORE, Defendant Diana Kinavey, prays that this Honorable Court
dismiss Plaintiff s Complaint with prejudice, or, in the alternative, reduce the amount
owed by Defendant by the amount of her damages and award. Defendant any other relief
that the Court deems just and proper.
FIFTH AFFIRMATIVE DEFENSE
V. Unclean Hands
65. Paragraphs 1-64 are incorporated herein by reference hereto.
66. By providing Defendant with a variable rate loan knowing that she wanted a
fixed rate loan, at a higher rate and with a larger monthly payment, Plaintiff made the
loan unaffordable and effectively forced Defendant into default.
67. Plaintiff should be barred from enforcing this loan against the Defendant by
virtue of its unclean hands and predatory conduct.
WHEREFORE, Defendant, Diana Kinavey, prays ghat this Honorable Court
dismiss Plaintiffs Complaint with prejudice, or in the alternative, reduce the amount
owed by the Defendant by the amount of her damages and award Defendant any other
relief that the court deems just and proper.
Date: ~'~s~~ By:
Geoffrey M. Bmnger, Esquire
8 Irvine Row
Carlisle, PA 17013
(717)243-9400
Supreme Court ID#18040
Respectfii]ly submitted,
MIDPENN LEGAL SERVICES
Attorneys for Defendant
f r
Members 1ST ~ e'N'~feD"~D'I~
FEDERAL CREDIT UNION SEP 2 6 2003
6000 Lodge Ddw, P.O. Boz 40
Mechankcburp, PA 17055
"^"""'""'namennm 1^`^~Y'w~T U^~x ,. Ilxl Fp£0 I IVARLwLE n
ANNUAL PERCENTAGE FINANCE CHARGE: ADwuntpmanDed:Thsanwuma TptalaPaymenla:Theampunt
RATE: The coat of yourcradn ae a The tldler amount the credll will cretlll prwldatl to you or on ywr you wUl Nave paid afar you hew
yearly rate.' cptyou. bphatt, metle ell paynrentc as schetluled.
7,qg % S 39,409.19 S 59.200.00 S 98,809.19
aNab4 Ra4:llynm ban My avarlab4 relaq Mka4tle la m ercentpe tinny NdeaaOUNro lha term of Wa Nan (NaeaT chgpea. The
crotlN Unbn MN atldamvpind btM lMgvalue.TM rbe vA0. caen9e mdlthy/manllnt 0aydbs rlbnN. Tha role wlllnwM be NpMrlNnlhe mewimum re4 eNOwetlW
4x,eM0.wNl newt bBlua NIN. Any ln4rnlrNellldgeq vW rquNNmwO pePrenladNa aameamount. Fd Ervnplc, llyaw lwn was fd Sfi,ppp al lfi%fd 18
mgnlM plN Ne Annual PYCanlpe Ra4lndgyBtl NY 2%YW oreyat, {M 41m a yWrloml umdtl Nrfgq by Mn mMlha
'Pn4mltl Rao:N
dlecyetl,YwroNpv{rp yppliq bydn ben:
I
ryry
eq ry your ray
®wnL YCUr
ANNUAI PERCENTAGE MTE ~B~bC nUNmMUn46 pv~ %~TIINahNNIIAL P£P~ EN1`A6~rMTE 6ytlaaatl aebore~NlrA~N CN AI PERCENTAGE RATE
mt
p
s
tMAU4melk PNmBM ONwun4tl Rao. Thb n4 MI IndeaM by.]b%It you cngatM wlpraNC paynunl enarparrenl or leN b melMain eNNcNnI funtly In your account b
covd the eubmaacpeAgMa. to such a tae, the eflactd Ole lncrws will Eeto qMM Ne lenn dyyoouur ban. Fd anmpe.Il YOUr AUbmalk pglr,aM pucouNetl Rate le lp%
pn•SgaaO
ap ban ld Np m
nlM
r
M
O
e
ea
n
ae
N
M
ll
.
d
a
payma
o
S
Y
U t
as
e
arralpenwa,Your rgaw
lrbrgee blp.2ll%, rauaNp lnleatl0.bnq payment
l1
oo
ypa
TNa
NIIW y~mtl WNMLPERCENTAGE RATE wIl lhq rvary laccd~irq bolunryab9~e~MgLu dnd~oppE epowl tlFd wm
le~H wiega~rtleluw
/a IONW ANNUA
p
r
L
PERCENTAGE MTEw t2%HlM pma you 4ke Ne ban
nylN qN
~NW
P
Yde
L
E
CkXTAOE RATE wYIM WA%
Yax MWl
aranen ANNUAL PERCENT
G
,
~
~
w
~
~
y
.
p
A
E
RATE UANIMn wryaWMlro 4MelrbaK ea datlwetl4 a~4deR
F4ad Rwe paMWrad twna rt Your bsn N e RxW re4 ban entl you qualNyfd a pralmrctl tale, lour ANNUALPEROENTAGE MTE WNbe OIe prdmtl ANNUAL
PERCENTAGE MTE rlNdgeE above rd ae brq g Ycut pnlanfd abtus miWns in Nrect.
Number or Payman4 Amaunrof Paymen4 PepneM Frequency When PeymeMa An pus Properb lneuronee:YW may oWalO propedy
Yoe insurance trgm anyMn you want that la acceptabM to
p,ya.,l 179 i597.e4 Monthly-Bepinnlrq Of5D72002 the credR Unbn. ll you gel the lnaurence from lha
GedB unlpn you pa
~~ 1 5595.83 Flnal Due- On
05101/2017 y
S N/A
9aurlly: Caaatarel aaeuMp WlN pea MW Fw credllnlol tlra9catla dpropeey Dlher
wla
l
Y
h%b
WN
l i
a
wgcuro
an.
wlrcp
p eaecnRy mbna
n bdro pumhuetl. (Daaroq:
your alu
w
enaNr
tl
gN In an cretlil uM
ep
O
n, aM: % O
p
ey
m
/
9
ay
S
be tllCe
a0a41elee
l b%a
aub sch
tl
llw~
lW ry tlaq FIIhg Feet. NonFlprq lnaunnce:
1
l
~I
~
~
w
ry
y
o
e
u
pe„nu m1
+W
nb
iccouM your wqu
rnl depoab Mlane
H
i
S Wp j WA
„aylan"rar I r.wrrm lopa.pn Ir. a:.a:a+nea`w.°Cwe ~ m w~wnpen~« .ul.rorqu rswm n m
Pwronw amw mWPma^m+IN.
dlwd oepwna or ~ y ~ ~ 6 ~
DATE
(BEAU COgxAKER Y)TNEROWNER •'CO-SIGNER MTE
(BEAU
MTE ^ COANWtER ^ YJTHE0. GINNER ^ "CO-SIGNER DATE
(SEAq X (SEA4
MTE ~ CO-MAKER ~ 'OTHER OWNER Q ''COSIGNER PATE
I~µ x (REAL)
+. IrornyalewlwNnmmn awu.wwlwNyn. NwAm ayYlomvmW4m,neW.arn. NM1 LXI [~ ^ L]
x. IA Ncemmaamuxr uraywml we e.wb.rq.amewennnNam Mwu amaNO>.1.>.wu~ p
tW.FS~~__IlmwNwN aRrl4in ]pMm.vmm xM lb NnaMgwwaN]IYap n.I.M~aaN Ngl.1 ^ a ^ a
nwWptn"Y mnl..anunNUm.~gppi~vlmMn~.mraml~oeWp~~Irpe~dwunl~cmtu~nt~.mnaw~.ngxwrcn~a~My.~I.a«waala°r~,~.°1~wN~~..aua ^ ^ ^ ^
l• cf~,~MY fn'pweslrVap+unMN1~DNHRW aYMn W41'r nnxaur an~r 9w. pv.mYmY.WXMa to- WurwkaN
MyI wMo-a blMtwYgmllaq na Wlona MlWmY lrm)InwrNeaB.Nb11W.p)tn{Facmrtmlwrmnlltl'lo amtrc],wuWgIYM V,tl p4
xiM e4w.e
TMW.GMNMNnYIwn)awWqu WIbIMMn MINS~pIkWIV.YYPWMnMreanwMyly ntl Mn Mnn[ai6NW nryawnnu bM
xanNmMrt4incanulMnpupmWYlYly4W Hamapon nauuY.MNB perppB IM.Ngne lMwnBtlq uneamMe rM( aMy°nlgygyplullan lwlnwqu
MbanamlmeaM NA}e4 well onnwlmllW gJaNa pW eNaMt ~Mn~lu:.n eauNnernqulynllnwnnuac(.
CWFaPwu a.w mrMm pp u.BS.en.w nmewwa.eenarW wN~ NNIUa1NnMmv~yy ~~ppc la BPaeB Bn nk TJy applaWbnwylmlb w.Gnaanu.IFWIpNngl
nwrgar.e, xplxkBwngaNnB rPPaxul^n.MenW seen MmwBM
CREDIT INSURANCE APPLIED fOR: NOTE: ONLY ONE APPLICANT WY MPLY FOR 018ABILITY COVEMOE.
^ Yes 1(^ No Single Credit Lila Total Premium ^ Yes fl No Credll Diaabilty Total Premlum
^ Yea Q No JOIM Credit Life
Wka4 welW gplkanl(a): ~ Applkanla CaApolcenl 50.00 IMkAlswHCh applkaMla): ~ Applkent^ CoApplkaM 0
Yw tirmwMmbN W Irya acwr. r1o-MYN e W qN YNiwMwN,4ypnlM.
AP%. ANT5610 NTURE PATE OF BIRTH DATE t1CAN 'B SKTN iU M T MTE
WITNESS MTE SECONDgpY BENEFICIARY IAPPLIMNT7~F.CONO
11 tCPAPPPCANT)
MHC6a1196,d1 Asoen,.men. a.,..er ,n~ X~f1 _ ._
MnwMXT tnB>nMan.MwHCVnpMMa rrc. AY rkN. merrol
OTHER (DNOrlbe): 48 SUSSEX ROAD
BpNflOWER' NMrf Lpwr NUMDEfl aCCOUxr NUMBER paTE Of LDerl
DWiA K Kn'IAVEY 8533 15]08001 OS/OB/Z002
I~~SAEB ~REEMENTas~ NE WORDS "CREDIT UNWN' 1dEAN8 MEMSER8 t8T BEDERAL CREDT UMON. THE WORDB'YOU; "YOUR" rWD'YOURS" MF?N THOSE
LAAN AGREEMENT
PaymantslFlnanw Chargn: For wlw rewhred, you prdmiea to pa , at
the CredN Unnn'a aflce, tU amounts bus. AN paymMh eMll M made
purouanl b Ue dsdowre enMrlerN on age 1 d Ula daumant. You
d lhb Eowmedrlt e~refbged M lheeassd ~dpBOn yoall lrotalGlm"w"enl papfmaente
a lxa~rtad~el NN yp~wnh'~nue outls ~N6mMltiane a1pelnhwtei red
additional inla~reaPon the lmwrorredwU"ao r~~ ryms it la due, you w ll pay
SECURrtY AGREEMENT
t.
Pnhrred Ren: II you quell~1YY for a prefxne rate n tlMdwatl on pBge 7 d
UM tlowment or in a separate prolened ran addendum yw unearatend y
ihel yw must meal Ue conx3wa tl4doW byw to order to quanly for the
ypyooMUu erroo rate aM mnl cantlnw n meet thou crWMaw In rdr 1o keep a_
mcreisaalh•rebY extendrp Me IIar"~msl your benbYoirypp"roromrlea IorwntMw
mekfnBDcaymmn antl to roast ad obllaatlns underthb npreement evn If
yw no ronper rxehe the Orefarrad n ~,
L.an Charge: I/ Y u make a Ian W nt, you agree to pay a hie charge
p one M ekowsaG °w papa 1 pr finis Eaumeat.
Property Iwurenw: N yw obtain s ben encored by a mold veMCla r
aher Inggna prcpedy, you mwt ablain Iwurenw wakh prdacb Ue crodn
union from llnancral loo. Ths amount and dlM progeny
Maurxlce must b• acceWaDb to the credit unluch a policy must
proWde x Inet Ilrs, iMfl, combMed addibmol eorore8es and wnbiw
maurarwe. II must wntein a bwe P e dean endaraamenl namng the
redk union ae Ibn hddr. Yw may dbWn Uds Msurnca Iran env eBont at
your choiw and dtrxl the aprn to send Ina crotll[ unbn a copy ar Ole
polky.
7~roo name adErael sop mpluo rtlWSM. YWtyprld nadnM.tooappy fi a lom4r"
Maur o ~llpallonnebcwrdwinn8 bqeWUe leroibnibb 111enueroWt bn.~Ylw promlpse
to Mfa~r~aMOn Ygrnaomiea np"""ilooWmit felwluei In~aune IIMY Io
gs~da nah,ny concnlln(armatlon roganbp ywr eretliMrlnineas.
Irq, r cmtld capadly.
Delay fn En/orwmen: CredN UMOn m Y tlelay en(reinp any a Ue credo
unbn dghb under Ule aareamenl wNhoul being them.
Irngulsr Paymenn: TM assn uMw may accept lace p ms or pertix
i edllaunl0^wri8hba~Ula proawlnfuY. without bakq enY dlM
enhaua 6Wh M"eYab1TMt"aeAR unbri Goa n hl haGYn~ta mm~tl/"vr YW Ihat Ula
aprsxnant has 1n~olsbeen pail. TM credit uMon mryeAend Ue nrma d
rweapormibl hrdl thb e8rea~~ ~ywilhwl nolNyinB or rxeaeln8 you frrn
ConeacbulPMtlga ol8hsm: YOU yy1•tlw all youraMru •ml tlepwlb M the
or•tlR unbn, In4udw luWn •ddabn•, as •rourlry brtlW nan.ln caaaYw
dxue,w u•dN UMOn may p1yN«•aWn•mtla.poalbtaw nYm•x
axl mma due at IM nm. aYxaua Ineluxna coal. of eellae0on.na
rxmnabl• aaornaya i•x, qx M• crHN union m•y Innur, up b aOY. a M•
unpxtl polwlpal and IMrxb No N•n Pr dpht b knpnu a Ikn n MaM and
depoaM MaN ppW to of youraMrea whkh may D•hxtlMm'btlNltlual
RNinm•nt AecounY'r"Kwph Plan."
6. Ytwa3wiwll ~mMeFDl•Nl abaunnc nM ~T~r~~_wMCM aeaer l~IMm ar~d an Ma
empnl utlafBCl nu~w sren~uNan.'~+a''vi~uoWq~ I~ia crad~lwuan wpnaocr
of aurrhnm hxxlkxamrs bcrodll miM ~nd aecu~~d by iNa
.n fxnme in sash ineurarpya endlt men may DUl
P.m r ur~o~wl umarwad $ur ovm arN etltl llw cos, ae/auCh to Ow
wma s Iwo pyrlmrx xNearWanuhn~d~~ndbunb peld.Ywar~ulMr
4a to union Me ~I~hurro ~IMepx•Ma dr~~MCiC m
yn e ttedf union Wan se rrryrydackraar provileds
M pac~Xet.W~~euch turrww,aM Sppfyepoceeda bPe wma owed to
~Creawc`.:uryggi~~°mxatotl1°meu'IPmkc/w'«Iwr~rYvcimi~dinmdx'yadea~':~urwiy1E•~°ws~pv cemr
uaanry~YrUadtlel0l~~redMntlll bpYwinir~dlNd„iMN eN k pYnriy lof lne pofd fire
9. tllmlN hWlnmw`Nlaf~Mr~xMtlnm~eldh(lylhea, IrkY prx~bdh~~,~u.~ryau
IAi~at"aawid'i l°a•S`ii:"rgi~r.~bpolbd °"Y°'YH~M axpe~"Nxi""quallae"
y las
w.
slop Y/aa
hero to pay up Ip the full amwnl d Ue tlebt If Ua borrower dws rwt pay. You may also non to pry Isle lees x wllecllon cwla, which Increase Uls
Nx can caned Uls debt Irom YOU wit put~rotgbyM~hn wlMd from IMborrmnr. TDB cretlnreen we Ue game edleabn melhode e9xnat you Ihet
ed anellul lM tuxrowm, sucD as au ttN rig your wage, xc. NtMa dabl b soar In delaull, Ux faq may baccme a pen,lf your credN
Yb ndice is not the canlrad Uat make you abn br tDa debt.
F. 45]68 1Po1
nwRO anon.. m, ue4+me
Pepe 2 a 1
~n \
y. VO~ ,
9nMnry Uen• N you no in default, ietlerel law gives Ole aedH unlw Ou
ripM n aodY OrB Mlenw a aharea ndlor dn7tlenda M vau 0ccwnl(a1 et
Iha dme oft aeleuN to sxiaNlhia Iwo. Ono you ere in daaulf, the creddN
union may euxcbe lhM rb lwithwt/uMer nonceny~u.
'i~„t i i:,~ S{4
`-' le
.
;Y~~N~ B~N~
{ ~,r+ /~' ~~~ j' i EQUITY LINE
` ~ OF
I
'dneCitize»~Pta~a ~CREDITSTATEMENT
Provl~~ncg d3~~2903 ~
"
` ~~
~:
,
d ~
Page 1
.. .~ ~_ ~ ~~B-9~Q /i1Q~ ~, .> - 'Closing Date
~~
-
Call anytime toi anoynr 1h{otm>tbn, ~~~
curtJntotenndaliawenWyourgwulons. SEPTEMBER 20,20, 2003 J
Ac6ouht plumber ~ 080 Odb(f60571~1Y976
Credit Limit " 1tl,oo0.90
Available~'Credit, "2%.40
DIANA K KiNAVEY Days in Ailling Cytle 4 ' 30
48 SUSSER ROAD RVe[ageC'~aily Balance 4,785.40
CAMP NICL, PA 17011 Daily Periodic Rate .01027397Wi
ANNUAL PERCENTAGE RATE 3.7s
FINANCE CHARGE 30.16
New Principal Balance 9';9'i8.1q `
Current Payment 30.1
Past Cua ~^OUnt O:oo
Total Late Fees Uue 0.00-
Payment Due Date 10/10/03 Minimum Payment 30:16;
BALANCE SUMMARY
Previous - ~ Payments/ + Advances + Finance + Irsurance + Other. = New Total
Total Balance Credits Charge Charges Satance
9,478.10 100.00 600.00 30.1G 0.00 0.00 10,008.26
TRANSACTION DETAIL
Date Description Check No. Amount Princi pal Balance
08/27/03 ADVANCE 123 100.00
- 9,550.68
09/04/03 ADVANCE 124 500.00 10,050.68
09/08/03 PAVM[1dI -THANK YOU ' 100.00 9,978.10
IF YOU HAVE ANY QUESTIONS ABOUT YOUR STATEMENT, PLEASE CALL OUR 24-HOUR
PNONEBANK AT 1-885-910-4100. TiV+NK YOU FOR BANKING WITH CITIZENS.
NQi Y(II1R TYPICAL BANK.
Pbau detach and return thi: coupon with your check payable to Ci[i;:ens Bank
~~ CITIZENS BANK EQUITY LINE OF CREDIT
Payment Address: Q [heck this box if change of Account Number 060-00006057117976
PO Bo% 1315 address ar personal information
Providence RI 62901-1315 wmplateaonreaeses;de.
Payment Due Date
10/10/03
Minimum Payment 30.16
DIANA I: KINAYEY
48 SUSSEX ROAD Amount Enclosed
CAMP HILL, PA 17011
~ '^
/ U J
[Q Equal HOasingLender Member FDIC w
See nrverse side far impartint information 01 060 00006057117976 000000000003016
k~ +r
Customer Service
If you have any questions regarding your account call the number shown on the front of your statement or write to us at the following address:
Citizens Bonk
Consumer Coan Servicing •RJE212
1 Citizens Odve
Riverside, 87 029 7 5-3000
YOUR BILLING RIGHTS -KEEP THIS NOTICE FOR FUTURE USE
The following is important information about your rights and our responsibilities under the Fair Credit Billing Act for line of credit accountr.
Notify us in case of errors or questions about your line of credit bill
If you think your bill is wrong, or if you need more infarmafioh about a transaction on your bill, write us on a separate sheet at the address fisted above.
Write to us as soon as possible. We must hear Nora you no later than 60 days after we sent you the first bill on which the error or problem appeared. You
can call us, but doing so will not preserve your rights.
In your letter, please give us the following information:
• Your name and account number.
• The dollar amount of the suspected error,
• Describe the error and explain, if you can, why you believe there is an error. If you need more information, describe the item you are not sure about.
If you have authorized us to pay your hiR automatically from your savings or checking account, you can stop the payment on any amount you think is
wrong. To stop the payment, your letter must reach us three (3) haziness days before the automatic payment is scheduled to occur.
Your rights and our responsibilities after we receive year written notice regarding your line of credit
We must acknowledge your letter within 30 days, unless we have corrected the error by then. Within 90 days, we must either correct the enor or explain
why we helieve the bill was correct.
Aker we receive your letter, we cannot try to collect any amount you question, or report you as delinquent. We can continue to bill you for the amount
you question, including finance charges, and we can apply any unpaid amount against your credit limit. You do nothave to pay any questioned amount
white we are investigating, but you are still obligated to pay the parts of your bill that are not in question,
If we find that we made a mistake on your bill, you wilt not have to pay any finance charges related to any questioned amount. If we didn't make a mistake,
you may have to pay finance charges, and you will have to make up any missed payments on the questioned amount. In either case, we will send you a
statement of the amount you owe and the date that it is duo
If you fail to pay the amount that we think you owe, we may report you as delinquent. However, if our explanation does not satisy you and you write to
us within ten days telling us that you still refuse to pay, we must tell anyone we report you to that you fiave a question about your bill. And, we must
tell you the name of anyone we reported you to. We must tell anyone we report you to that the matter has been settled between us when it finally is.
If we don't follow these rules, we can't collect the first Y50 of the questioned amount, even if your bill was correct.
Method used to determine the balance on which the finance Charge will be computed on your line of credit accoun!
We figure the finance charge on year account by applying the daily periodic rate to the average daily balance of your Credit Line AccourR and then multiply
by the number of days in the biWng cycle, To get to the average daily balance, we take the total beginning balance of your Credit line Account each day and
add new advances and subtract the prindpal portion of any paymentr, and credits. The beginning baWnae for the period is the New Principal Balance amount
from your previous statement To determine the principal portion of a payment, subtract any unpaid finance charges then insurance premiums (if any) and
membership fees and other charges (if applicable), This gives us the daily pdnripal balance each day. Then we add up a(l the daily principal halances for the
billing cycle and divide the total by the number of days in the billing cycle (the number of days since your last statement). This gives us the average daily
balance. The average daily balance does not include finance charges, insurance premiums, membership fees or other charges.
How you may compute the finance charges on your line of credit account
When the average daily balance has been computed, you multiply the average daily balance by the daily periodic rate which is arrived at by dividing the
Annual Percentage Rate by the number of days in the year. The result is multiplied by the number of days in the billing cycle. This figure is the finance
charge assessed for the billing cycle. Both the Annual Percentage Rate and the daily periodic rate may be suhject to change.
NOTE: Any dollar amount paid over the amount due will be applied to the principal.
Thank you jor banking with Citizens Bonk.
Change of Address or Other Information
Please complete the lines below. You may also visit any one of our branches or write to the correspondence address listed above.
Borrower(s) Name
Street Address
CityfStatefZip .
Phone Number -~
Signature Date l' ~ . ~
F-36 REV. 10(02
~O d~ f~l
ii '.
e~ ~
r1 m
M
O ~
N
hh
~~
hh ••
q M
rn
a
° °
x
~ a
z a x~b °a ~
~
U m°
~w E
¢~ ¢~ W
a
Q
a E•
~ ~
cn a
a a >, ~
u
i
~
H ~
.41 Ci
~
~
~
W
N
d ~
Wm' W
W
O
w
i $
~ 1.
~E
°
~
p ~~ ~ w v
'mw
aa ~
~a o
~~ a
0
EF
H
~U
~~
W
U
0
0
0
N
O
O
U ~
M
Wh ri
Ot~1
`..
r°pi w i+
\••
rid'
H r•
z
~ ~
~ U
GC. O
h
~~~
~aa
Qxa
y1 UIH
~a~x
zma
Fif0
~~
r-i 00 O
ro o0 0
p 00 0
F NN o
rN 1f1
M
N O O
y5 O O
N N
V N w
O
}i
ro
v
7~
~
U N }i
~
k G.
i r
-~ S
i o
N N +-~ '~
w
U
N
x
ri
O
r
0
M
N
~,
H
z
m a,
U h
rti
W O
h
rn
W
P:
~ ~~
~ Hv
U 3]
m
~~
a ~m
N
F~
U~ ~ .
ro
N
.~,
N
U
N
W
J-~
O
H
d~ MM
O MM
o
N 01x1
~ ~b
M d~ d~
C7
u1
w
O
Ff'.
M
Q N
U
~ ••G
m~ rt~
~~
~m
UV
.~i [r1
U ~
~
U H
n
i n ~
~ ~ '~
i,
X
43 U ~
a
N a
~a m a' .-~
~OUI N O
MM N O
~p ~p O N
1 1 d~
00 M
~qi rt
NN 1
rr
~~
rr
N
i°
w~ z q
~+ ~
~ ~ ~
~
tOW
~
~
a
a
uu
i ~ w
H
~~ a ~
a
~,T, W
[
`
~ H
i~i-J
rr
a~~
~V
V
O
E
v
wa
oin
~..
M~
rIN
~..
01N
rl
.~,
u
N
cn
~~ ~'~
w ~o,-~ oq
~~ ~
aCl~a~i0
'
U WGA ~R
.
~
Ol
q
w
~w
u
i
x
~ ~F qH~
i
a
m
W
ao~ ~
~
p ~
iw
Q
, c
a
0
0
0
N
0
0
M
N
a
z
0
0
U'
~ o
r
~~~
~aa
-wa
~~x
zcna
xw~
~ ~ o 0 0
ro o o °
a o 0 0
{ E o 0 0
r{ rl rf
` {/} t/}
a
H
Cq
3
0
m
N
N
0
V
m
0
O
N
w
O
O 0
~ w
ro
v
5
.~
a~
U
N
a
N
a
U
N
7.
m
ai
H
~n
0
r
0
M
N
1
z
ro
~N
w~
U3
N
W
0
a
.~,
N
U
m
A
xm
H9+
N
w
x
m
ri
0
0
N
[ ~ 4
~„ ~~
o ~~
o
N MC`1
\ WW
(~ M~~1
rl
of
w
O
M
v o
o
N
N
..q
~ ~~
p+W
e~
~~
UU
c, ..
a1~
t~
H
q ~
0
~
~ T~ T
~
V
~ r
~ ~ c
~ p
T
v
h
~ N
~
~
d
~
~ ~ v
~ ~ ~ ~ ~
ro
~
3 Q
lz
H a w x
6
T
n
O~~
~~ '
CUMBERLAND COUNTY TAX CLAIM BUREAU
ONE COURTHOUSE SQUAF2E
CARLISLE PA 17013 PHONE 717 240-6366
FAX 717 240-6354
Reprinted: 3/01/05 C TAX CLAIM RECEIPT Receipt No.: 41835
11:06:44
Receipt Date: 2/il/2005
Page: 1
Control Number: 13-002000
Property Description:
KINAVEY DIANA K
48 SUSSEX ROAD CUMBERLAND PARK
O
L
T 89 TR 3 PB 6 PG 3
CAMP HILL PA 17011 ing
e
Situs
In£ormation
48 SUSSEX ROAD
Map No: 13-23-0557-061 LOWER ALLEN TOWNSHIP
Tax Penalty &
Xear Description Face Interest Costs Total
2003 SCH-WEST SHORE 383,41 11.52 394.93
Received For Year Of 2003 $394.93
Total Received $394.93
Tendered > CHECK
Received By > LM
Paid By > KINAVEY, DIANA K
Remarks > 115674
ESalasice Due As Of 2/11/2005
Claim Balance: .00
_ - `- ` 1~
Receipt Number: 41835 Total Received:; /$394 3
AMERI VEST
MORT~AGE
co;rip~ixy
January 29,2005 `
H. Gus Dorn, Senior Agent
Commonwealth of Pennsylvania
Office of Attorney General
Bureau of Consumer Protection
Harrisburg Regional Office
301 Chestnut Street, Suite 105
Harrisburg, PA 17101
RE: Diana K. Kinavey, A-007313-2004
Dear Mr. porn:
RECEIVED
EEB 4 7 Zoos
~;Itnce at Attorney General
~ a~~
This letter responds to the complaint filed with your office by Diana Ktriavey on December 6, 2004.
The complaint flied was formatted as Complaint 1 and Complaint 2. We' provide a response to each
complaint below:
Compfafnt is
Amerlquest advanced delinquent taxes and created an escrow account:
At origination of the loan, Ms. Kinavey did not elect to establish an escrow account for taxes and
Insurance. Amerlquest vendor, Fidelity National Tax Service, ("Fidelity"), monitors escrowed and non
- escrowed accounts and identifies delinquent taxes during the annual search of the tax collector
records. This search is performed at different times of the year, dependdng on when each tax
rnliector's office makes the information available. For all dellnquencles, Fldefity sends to each
borrower a letter requesting that the borrower pay outstanding taxes avid send back proof of payment
within 30 days. We enclose for your review Fidelity`s correspondence dated July 7, 2004, mailed to
Ms. Kinavey.
• If the tax server receives no response to the first letter, a secomi letter is sent requesting a
response within fifteen (15) days.
• If a response Is received from the borrower and the response is complete; the tax servicer
sends the borrower an acknowledgment.
If a response Is received from the borcower and.the borrower partially fulfills the
requirements; the tax servicer notifies the borcower accordingly and notifies Amerlquest.
There is no.indication that Ms. Kinavey responded to Fidelity or Amerlquest prior to taxes being
advanced on October 14, 2004. Amerlquest advanced $486.83 to Cumberland County for the
delinquent 2003 tax; $846.44 to West Shore SD/Lower Alien Township for 2004 taxes and $417.13 to
Lower Allen Township for 2004 taxes.
On November 1801, a wnference call with Ms. Kinavey and Cumberland County was noted by our Tax
Department. The County confirmed Ms. Kinavey had an existing payment. plan for the 2003
delinquent taxes and on November 24N, Amerlquest received a refund of $486.83 and credited these
fLnds to the escrow acrnunt. The escrow account currently has a negative balance of $1,265.55 which
represents the 2004 taxes advanced uy Amerlquest.
Our rewrds indicate the loan is contractually due for the December 2004 mortgage payment. In
October 2004, Ms. Kinavey spoke to our Customer Care Department and stated she was experiencing
a financial hardship due to having recent knee surgery. She was receiving disab111ty benefits that only
equaled two-thirds of her regular monthly Income. ~1
As a customer accommodation, Amerlquest will spread the escrow balance over a 24-month period®\~/~
Instead of a 12-month period. If Ms. Kinavey further assistance with bringing her lean current
contact our Home Retention Department for payment plan options available. , `\
V
1100 Tmm a Cooney Road, Suite 400, Orange, fA 92Sfr8 • PLoce (714) 541-9960 • Pu (714) 245-0385 C~.•
~'
We respectfully decline Ms. Klnavey's request to waive the 2004 taxes Ameriquest advanced.
However, If Ms. Kinavey contacts the county and requests a refund be Issued to Ameriquest for the
2004 taxes, we will credit and cancel the escrow account. Ms, Kinavey will be responsible for
establishing a payment plan with the county for the 2004 taxes and will be requtred to provide a copy
of the payment plan and to contact Ameriquest If she receives future: correspondence relating to
taxes.
Comp/e!n! 2:
This complaint states Ms. Kinavey sought refinancing with Ameriquest to obtain $20,000.00 in cash
out proceeds to purchase an Investment property.
The loan application taken on August 18, 2003 by Ameriquest Lancaster, PA branch was processed as
loan number 0054928064. The information obtained during the application process suggested the
property had a current market value of $125,000. The federal requlrc:d disclosures, ("RESPA'~, were
mailed on August 18"' and disclosed an estimated loan product based on a loan amount of #112,500,
on an adjustable rate note at 10.350% Interest.
An appraisal was ordered and performed and the estimated market value of the property as of August
29, 2003 was $103,000.00. There was nothing noted in the appraisal that the property required
repairs for siding. Accordingly, no reserves were withheld through the loan proceeds for deferred
maintenance. The appraiser commented, "the wb~ect property Is In average condition on both the
interior and exterior. The subJed has a standard floor plan and averege amenities. The subJect has
recently been updated Including a new kitchen, bath, facia, soffit, gutl:ers, antl thermal pane
windows." Our research does not support Ms. Klnavey's allegation that $103,000 was an inflated
value for the property. We enclose a rnpy of the appraisal for your review.
The title rnmmitment provided by Express ~Inancial Services disclosed a first mortgage held by
Members 1K Federal Credit Union in the amount of $59,200.00, a second mortgage held by Citizens
Bank of Pennsylvania In the amount of $12,000.00 and a third open-ended mortgage held by Citizens
Bank of Pennsylvania in the amount of $10,000.00. The instructions to title are to insure Ameriquest
in a first Ilen position, therefore Ameriquest requires all prior mortgages or security Instruments
attached to a property be paid in full to ensure a first Ilen position.
When an existing mortgage is paid off through the loan proceeds, a request for Reconveyance and
Estoppel (s required to be executed by a borrower at closing. Our records show a Remnveyance and
Estoppel was executed by Ms. Kinavey for the mortgage held by Members 1'r Federal Credit Union.
There was no estoppel executed and Issued to Citizens Bank of Pennsylvania when the payoff was
disbursed.
At Gosing, Ms. Kinavey executed the enclosed HUDi Settlement Statement showing $8,255.14 as
cash out proceeds. The final HUD7 Settlement Statement confirms she received the exact amount
agreed upon. In addition, she was provided with the federal required three (3) day Notke of Right to
Cancel and One Week Cancellation Period dowment that allows Ameriquest borrower's seven (7) days
to review their loan documents and to cancel the loan transaction at no cost, Ms. Kinavey did not
elect to cancel the loan transaction and the loan funded.
We trust the above addresses the concerns outlined In the complaint.
Sincerely,
Marti Quigley
Regulatory Analyst III
Legal Department
Enc.
cc: Sabine Wromar, Esq.
O~~
~~O
VERIFICATIOI\f
The Defendant, Diana Kinavey, verifies that the statements made in the above
Answer to Plaintiff s Complaint with New Matter and A1:firmative Defenses are true and
correct. The Defendant understands that false statements herein are made subject to the
penalties of 18 PA C.S. §4904, relating to unsworn falsification to authorities.
/~/ / "`/ o
q~/
Date: / " /~
Deana 'navey, App Rant
Geoffrey M. Biringer, Esquire
MidPenn Legal Services
8 Irvine Row
Carlisle, PA 17013
(717)243-9400, Ext.12
gbirin¢er@midpenn.org
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF : IN THE COURT OF COMMON PLEAS
AMERIQUEST MORTGAGE : OF CUMBERLAND
COUNTY,PENNSYLVANIA
SECURITIES INC., ASSET BACKED
PASS-THROUGH CERTIFICATE SERIES:
2003-11UNDER THE POOLING AND : No. OS-317_i CIVIL TERM
SERVICING AGREEMENT DATED AS
OF NOVEMBER 1, 2003 505 CITY :CIVIL ACTION -LAW
PARKWAY WEST SUITE 100 ORANGE
CA 92868
Plaintiff
v.
DIANA K. KINAVEY
48 SUSSEX ROAD
CAMP HILL, PA 17011
Defendant
Certificate of Service
The undersigned hereby certifies that on the; below stated date, he served a
true and correct copy of the within Answer with New Mather and Affirmative Defenses,
by mailing same to the office of Plaintiff's attorney of record by first-class mail, postage
pre-paid, addressed as follows, which services satisfies the requirements of
Pa.R.C.P.No.440: Francis S. Halinan, Esquire, PHELAN, HALINAN,& SCHMIEG,
LLP, One Penn Center Plaza, Suite 1400, Philadelphia, PF. 19103.
Date: 7 /~Z'.U~s
Respectfully submitted,
MIDPENN LEGAL SERVICES
Atto e;ys for Defendant
By: ~ ~ r ,
Geoffrey .Bringer, Esquire
8 Irvine Row
Carlisle, PA 17013
(717)243-9400
n7 ~-y
cn ._{
-
t -n ..;
~
cry ~
;.,~
;~
_._ ~~
REED SMITH LLP
By: Henry F. Reichner
Identification No. 46486
2500 One Liberty Place
1650 Mazket Street
Philadelphia, PA 19103
(215)851-8100
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF AMERIQUEST
MORTGAGE SECURITIES INC.,
ASSET BACKED PASS-THROUGH
CERTIFICATE SERIES 2003-11 UNDER THE
POOLING AND SERVICING AGREEMENT
DATED AS NOVEMBER 1, 2003
505 CITY PARKWAY WEST, SUITE 100
ORANGE, CA 92868,
Plaintiff,
v.
DIANNE KINAVEY,
Defendant.
Co-counsel for Plaintiff
COURT OF COMMON PLEAS
CU1vIBERLAND COUNTY,
PErdNSYLVANIA
No. OS-3175 CIVIL TERM
CIVIL ACTION -LAW
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of Henry F. Reichner and Reed Smith LLP as co-counsel for
Plaintiff in the above matter.
Dated: August 3, 2005
Respectfully submitted,
F. Reichner
REED SMITH LLP
2500 One Liberty Place
1650 Mazket Street
Philadelphia, PA 19103
(215)851-8100
Co-counsE;l for Plaintiff
JI9P5I vl-HFFEICNN
PHLLI&822129.1-HFREICHN Bl3/0511:44 AM
CERTIFICATE OF SERVICE
I certify that, on August 3, 2005, I served a true and correct copy of the foregoing
Entry of Appeazance via U.S. mail, first class postage prepaid, upon the following:
Geoffrey M. Biringer, Esquire
MidPenn Legal Services
8 Irvine Row
Cazlisle, PA 17013
Francis S. Hallinan, Esquire
Phelan, Halinan & Schmieg
One Penn Center Plaza, Suite :1400
Philadelphia, PA 19103
i . Reic hne~
_, ~.>
r__n ~
'il
.-.t
~rt [Il
v, ~
(i]
~:
.
~`~ ~J
G'} '~•
REED SMITH LLP
By: Henry F. Reichner
Identification No. 46486
2500 One Liberty Place
1650 Mazket Street
Philadelphia, PA 19103
(215)851-8100
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF AMERIQUEST
MORTGAGE SECURITIES INC.,
ASSET BACKED PASS-THROUGH
CERTIFICATE SERIES 2003-1 I UNDER THE
POOLING AND SERVICING AGREEMENT
DATED AS NOVEMBER 1, 2003
505 CITY PARKWAY WEST, SUITE 100
ORANGE, CA 92868,
Plaintiff,
v.
DIANNE KINAVEY,
Defendant.
Co-Counsel for Plaintiff
COI;IRT OF COMMON PLEAS
CU]VIBERLAND COUNTY,
PENNSYLVANIA
No. OS-3175 CIVIL TERM
CIVIL ACTION -LAW
PLAINTIFF'S PRELIMINARY OBJECTIONS
TO DEFENDANT'S NEW MATTER
Plaintiff submits the following Preliminary Objections to Defendant's New Matter
pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure:
Plaintiff Trustee commenced this foreclosure action by Complaint filed on June
21, 2005.
2. Defendant Kinavy filed her Answer and New Matter on July 15, 2005.
3. As alleged in the Complaint and New Matter, this foreclosure action involves a
loan extended to Defendant bynon-party Ameriquest Mortgage Company ("Ameriquest") dated
September 11, 2003. See Complaint at para. 3; Answer/New Matter at para. 3. Defendant
sought the loan from Ameriquest for the purpose of obtaining funds to buy an investment
-]I9R5) v1.ryfFFCHN
PHLLI&822131.1-HFREICHN 8/3/0511:31 AM
property. See Answer/New Matter at paza. 11. Defendant admits the authenticity of the loan
documents and the fact that she has missed several payments. Sc:e Answer/New Matter at paza. 3
and 5.
4. Defendant asserts the following theories in defense of this foreclosure action
brought by Plaintiff Trustee: (a) Ameriquest (as opposed to Plaintiff Trustee} allegedly violated
the federal Truth-in-Lending Act ("TILA"), 15 U.S.C. § 1601 et sey,; (b) Ameriquest (as
opposed to Plaintiff Trustee) allegedly engaged in unfair and deceptive practices under
Pennsylvania's Consumer Protection Law ("CPL"), 73 P.S. § 202-1 et se .; (c) the loan extended
by Ameriquest (as opposed to Plaintiff Trustee) is allegedly unconscionable; (d) Ameriquest (as
opposed to Plaintiff Trustee) committed fraud; and {e) Ameriquest (as opposed to Plaintiff
Trustee) has unclean hands.
5. Each of these defenses is legally insufficient as a. matter of law and therefore
subject to preliminary objection pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil
Procedure.
6. The TILA defense fails inasmuch as the Superior Court has ruled that a TILA
defense is not available in a mortgage foreclosure action. See Fleet Real Estate Funding Corp. v.
Smith, 366 Pa. Super. 116, 127 & n. 5, 530 A.2d 919, 925 & n. 5 (1987).
7. The CPL defense fails for two reasons. First, the transaction in question was
entered into for a business purpose (the purchase of an investment property) and not "primarily
for personal, family or household purposes" as required by 731?.S. § 201-9.2(a). Second, the
CPL is directed only at persons who have violated its provisions. See, ~, 73 P.S. §§ 201-8(b)
and 201-9.2.
-3-
8. The unconscionability defense fails because the New Matter does not allege facts
sufficient to establish that Defendant Kinavy lacked a meaningful choice before accepting the
loan and that the loan unreasonably favored Ameriquest.
9. Defendant's fraud claim fails as a matter of law because there is no allegation that
Plaintiff Trustee made any false statement to Defendant; rather, Defendant's fraud defense is
directed at the conduct of Ameriquest.
10. Finally, Defendant's unclean hands defense fails since there is no allegation that
Plaintiff Trustee did any inequitable act and a foreclosure action is an action at law with the
defense of unclean hands accordingly being unavailable.
WHEREFORE, Plaintiff requests that this Court must enter an Order dismissing
Defendant's defenses asserted in her New Matter and granting such other relief as the Court
deems fit.
Respectfully submitted,
1
. PTeichner
REED SNQTH LLP
2500 One Liberty Place
1650 Mazy:et Street
Philadelphia, PA 19103
(215)8 5 1-13 1 00
Co-Counsel for Plaintiff
Dated: August 3, 2005
-4-
CERTIFICATE OF SERVICE',
I certify that, on August 3, 2005, I served a true and correct copy of the foregoing
Plaintiffs Preliminary Objections to Defendant's New Matter via U.S. mail, first class
postage prepaid, upon the following:
Geoffrey M. Biringer, Esquire
MidPenn Legal Services
8 Irvine Row
Cazlisle, PA 17013
Francis S. Hallinan, Esquire
Phelan, Halinan & Schmieg
One Penn Center Plaza, Suite 1400
Philadelphia, PA 19103
. Reiclmer c-
~>
c-, r,-,
-„
- -
~
~ ~:;
~
-,
._ _ '~;
~,_
<n
_, ~ -~
+7
Patrick Cicero, Esquire
MidPenn Legal Services
213-A North Front Street
Harrisburg, PA 17101
717-232-0581, ext. 2111
pcicero@midpenn.org
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF
AMERIQUEST MORTGAGE
SECURITIES, INC., ASSET BACKED
PASS-THROUGH CERTIFICATES,
SERIES 2003-11UNDER THE
POOLING AND SERVICING
AGREEMENT DATED
NOVEMBER 1, 2003
Plaintiff
v.
Diane Kinavey
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. OS-3175 Civil Term
CIVIL ACTION -LAW
PRAECIPE TO ENTER APPEARANCE
To the Prothonotary:
Please enter the appearance of MidPenn Legal Services as co-counsel for
Defendant, Diana Kinavey, in the above-captioned matter.
The undersigned hereby certifies that on the below stated date, he is serving a true
and correct copy of this Praecipe by regular first-class mail, postage pre-paid, to:
Francis S. Hallinan, Esquire
PHELAN HALLINAN & SCHMIEG, LLP.,
One Penn Center Plaza, Suite 1400,
Philadelphia, PA 19103,
Henry F. Reichner, Esquire
2500 One Libery Place
1650 Mazket Street
Philadelphia, PA 19103
Geoffrey M. Biringer, Esquire
MidPenn Legal Services
8 Irvine Row
Carlisle, PA 17013
Date: i 2 ms's
Respectfully Submitted,
MIDPENN LEGAL SERVICES
BY: / v'i-~/
Patrick Cicero, Esq.
213A N. Front Street
Harrisburg, PA 17101
(717)232-0581
I.D. # 89039
Attorneys for Defendant
o
~
c~; ~
~ .a
Li,
- G ni r
p
~
rll i_
: 'C7 -C7
'-.., _ „~
rr_~_' ~, ~?c~
c,. _.~
:~ c. ..
r
_
.J
REED SMITH LLP
By: Henry F. Reichner
Identification No. 46486
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215)851-8100
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF AMERIQUEST
MORTGAGE SECURITIES INC.,
ASSET BACKED PASS-THROUGH
CERTIFICATE SERIES 2003-11 UNDER THE
POOLING AND SERVICING AGREEMENT
DATED AS NOVEMBER 1, 2003
505 CITY PARKWAY WEST, SUITE 100
ORANGE, CA 92868,
Plaintiff,
v.
DIANNE KINAVEY,
Defendant.
Co-Counsel for Plaintiff
COURT OF COMMON PLEAS
CU1vIBERLAND COUNTY,
PENNSYLVANIA
No. OS-3175 CNIL TERM
CIVIL ACTION -LAW
PLAINTIFF'S PRELIMINARY OBJECTIONS
TO DEFENDANT'S NEW MATTER
Plaintiff submits the following Preliminary Objections to Defendant's New Matter
pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure:
Plaintiff Trustee commenced this foreclosure action by Complaint filed on June
21, 2005.
2. Defendant Kinavy f led her Amended Answer and New Matter on August 17,
2005.
3. As alleged in the Complaint and New Matter, this foreclosure action involves a
loan extended to Defendant by non-party Ameriquest Mortgage Company ("Ameriquest") dated
September 11, 2003. See Complaint at para. 3; Answer/New Matter at para. 3. Defendant
-)19$51vI-HfREfCHN
PHLLI&822131.2-HFREICHN &26N53:51 PM
sought the loan from Ameriquest for the purpose of obtaining funds to buy an investment
property. See Answer/New Matter at paza. 11. Defendant admits the authenticity of the loan
documents and the fact that she has missed several payments. See Answer/New Matter at para. 3
and 5.
4. Defendant asserts the following theories in defense of this foreclosure action
brought by Plaintiff Trustee: (a) Ameriquest (as opposed to Plaintiff Trustee) allegedly violated
the federal Truth-in-Lending Act ("TILA"), 15 U.S.C. § 1601 et sue; (b) Ameriquest (as
opposed to Plaintiff Trustee) allegedly engaged in unfair and deceptive practices under
Pennsylvania's Consumer Protection Law ("CPL"), 73 P.S. § 202-1 et se .; (c) the loan extended
by Ameriquest (as opposed to Plaintiff Trustee) is allegedly unconscionable and (d) Ameriquest
(as opposed to Plaintiff Trustee) committed fraud.
5. Each of these defenses is legally insufficient as a. matter of law and therefore
subject to preliminary objection pursuant to Rule 1028(a)(4) of the Pennsylvania Rules of Civil
Procedure.
6. The TILA defense fails inasmuch as the Superior Court has ruled that a TILA
defense is not available in a mortgage foreclosure action. See Fleet Real Estate Funding Corp. v.
Smith, 366 Pa. Super. 116, 127 & n. 5, 530 A.2d 919, 925 & n. 5 (1987).
7. The CPL defense fails for two reasons. First, the transaction in question was
entered into for a business purpose (the purchase of an investment property) and not "primarily
for personal, family or household purposes" as required by 73 P.S. § 201-9.2(a). Second, the
CPL is directed only at persons who have violated its provisions. See, ~, 73 P.S. §§ 201-8(b)
and 201-9.2.
-3-
8. The unconscionabilitydefense fails because the New Matter does not allege facts
sufficient to establish that Defendant Kinavy lacked a meaningfizl choice before accepting the
loan and that the loan unreasonably favored Ameriquest.
9. Defendant's fraud claim fails as a matter of law because there is no allegation that
Plaintiff Trustee made any false statement to Defendant; rather, Defendant's fraud defense is
directed at the conduct of Ameriquest.
WHEREFORE, Plaintiff requests that this Court must f;nter an Order dismissing
Defendant's defenses asserted in her New Matter and granting such other relief as the Court
deems fit.
Respectfully submitted,
~f~~9"F. Re~r
REED SMITH LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215)851-E'~100
Co-Counsel for Plaintiff
Dated: August 26, 2005
-4-
CERTIFICATE OF SERVICE
I certify that, on August 26, 2005, I served a true and correct copy of the
foregoing Plaintiff s Preliminary Objections to Defendant's New Matter via U.S. mail,
first class postage prepaid, upon the following:
Geoffrey M. Biringer, Esquire
MidPenn Legal Services
8 Irvine Row
Carlisle, PA 17013
Francis S. Hallinan, Esquire
Phelan, Halinan & Schmieg
One Penn Center Plaza, Suite 1 400
Philadelphia, PA 19103
Patrick Cicero, Esquire
MidPenn Legal Services
213-A North Front Street
Harrisburg, PA 17101-14
~-----
eichner
i1 o
~ , f7
.
c
+~rv~ T
~ T
G") fly
n„
~
~[
~~
}C7
~ _J _n
;? -t
.-- `i7
c..; .
-c
Geoffrey M. Bitinger, Esquire
MidPenn Legal Services
8 Irvine Row
Carlisle, PA 17013
(717)243-9400, Ext.12
bg irin er ~,mid~enn.org
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF : IN THE COURT OF COMMON PLEAS
AMERIQUEST MORTGAGE :OF CUMBERLAND COUNTY
SECURITIES INC., ASSET BACKED :PENNSYLVANIA
PASS-THROUGH CERTIFICATE SERIES
2003-11UNDER THE POOLING AND : No. OS-3175 CIVIL TERM
SERVICING AGREEMENT DATED AS
OF NOVEMBER 1, 2003 505 CITY :CIVIL ACTION -LAW
PARKWAY WEST SUITE 100 ORANGE
CA 92868
Plaintiff
v.
DIANA K. KINAVEY
48 SUSSEX ROAD
CAMP HILL, PA 17011
Defendant
DEFENDANT'S ANSWER TO PLAINTIFF'S
PRELIMINARY OBJECTIONS
1. Admitted.
2. Admitted.
3. Admitted that the loan was extended by Ameriquest Mortgage Company.
However, it is denied that this in any way affects the affirmative defenses made by
Defendant. It is further denied that the loan was dated Sept. 11, 2003, as Defendant avers
that it occurred on September 15 2003. See Amended Answer/New Matter ¶¶ 3, 25. It is
further denied that the loan was made for investment purposes. As is clear from
Defendant's pleading, the loan in question was merely a de facto refinancing of her
existing personal indebtedness. See id., ¶¶ 52-53.
4. Admitted in part and denied in part. It is admitted that the actions in question
were performed by Ameriquest Mortgage Company. However, Plaintiff is liable for al]
of Ameriquest's actions because it is either an assignee of the note and mortgage at issue
and is standing in Ameriquest's shoes for all purposes and/or because there is sufficient
unity of interest between Plaintiff and Ameriquest Mortgage Company to hold Plaintiff
liable for Ameriquest's actions,
5. Denied. Averments state a legal conclusion to which no response is required.
6. Denied. Averments state a legal conclusion to which no response is required.
To the extent that a response is required, the Fleet case cited by plaintiff says only that a
recoupment claim for the $1,000 statutory damages is not available in a foreclosure case
as a counterclaim. Here, Defendant asserted a TILA rescission claim which goes to the
validity of the mortgage. Defendant has rescinded her mortgage and, as matter of law,
the mortgage is void. See 15 U.S.C. § 1635(b). Thus, if Ms. Kinavey is entitled to rescind
her loan, Plaintiff s mortgage is void, and a fortiori, plaintiff is not entitled to foreclose
on the property. For this reason, the case cited by Plaintiff regarding counterclaims for
money damages in a martgage foreclosure action is inapposite. Here, Ms. Kinavey is not
attempting to recoup, or set-off, any actual or statutory damages. She is seeking the
remedy of rescission, a remedy which obviously has a direct impact on the validity of the
mortgage that is at the heart of this foreclosure action. See Yslas v. D.K. Guenther
Builders, Inc., 342 So. 2d 859 (Fla. Dist. Ct. App. 1977); FDIC v. Ablin, 532 N.E. 2d 379
(Ill. App. 1988).
7. Denied. As is clear from Defendant's pleading, the loan in question was
merely a de facto refinancing of her existing personal indebtedness. See id., ¶¶ 52-53.
At a minimum, whether the transaction was made primarily for personal, family or
household purposes is a factual dispute that cannot be resolved by preliminary objection.
8. Denied. As set out in Defendant's New Matter, Defendant had no choice to
rescind or to meaningfully understand the changes in the terms of the loan from what she
believed she was receiving, said changes favoring one party only, Ameriquest.
9. Denied for the reasons stated in paragraph 4, above.
Respectfully submitted,
MIDPENN LEGAL SERVICES
Attorneys for Defendant
/~
Date: C, ~7. Z1~T By: /~~>/ ~rt~l~c-Gl- [.4~lh~
Patrick Cicero, Esquire
Supreme Court ID# 89039
Geoffrey M. Biringer, Esquire
Supreme Court ID#18040
8 Irvine Row
Carlisle, PA 17013
(717)243-9400
Geoffrey M. Biringer, Esquire
Patrick Cicero, Esquire
MidPenn Legal Services
8 Irvine Row
Carlisle, PA 17013
(717)243-9400, Ext12
gbirin ger(a~midpeIlTl.OTq
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF
AMERIQUEST MORTGAGE
SECURITIES INC., ASSET BACKED
PASS-THROUGH CERTIFICATE SERIES
2003-11UNDER THE POOLING AND
SERVICING AGREEMENT DATED AS
OF NOVEMBER 1, 2003 505 CITY
PARKWAY WEST SUITE 100 ORANGE
CA 92868
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYLVANIA
No. OS-3175 CIVIL TERM
CIVIL ACTION -LAW
DIANA K. KINAVEY
48 SUSSEX ROAD
CAMP HILL, PA 17011
Defendant
Certificate of Service
The undersigned hereby certifies that on the below stated date, he served a true and correct
copy of the within Answer to Plaintiff s Preliminary Objections, by mailing same to the office of
Plaintiffs attorney of record by certified first-class mail, postage pre-paid, return receipt
requested addressed as follows, which service satisfies the requirements of Pa.R.C.P. No. 440:
Francis S. Hallinan, Esquire
PHELAN HALLINAN & SCHMIEG, LLP.,
One Penn Center Plaza, Suite 1400,
Philadelphia, PA 19103,
Henry F. Reichner, Esquire
2500 One Libery Place
1650 Market Street
Philadelphia, PA 19103
Geoffrey M. Biringer, Esquire
MidPenn Legal Services
8 Irvine Row
Carlisle, PA 17013
Date: - /z ~- LS l~
Respectfully Submitted,
MIDPENN LEGAL SERVICES
13atrick Cicero, Esq.
213A N. Front Street
Harrisburg, PA 17101
(717)232-0581
I.D. # 89039
Attorneys fox Defendant
~"~ Y~7 ~ }
^f1
<-1' - i
~r
`. _
i'_
G3
C.-
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF AMERIQUEST
MORTGAGE SECURITIES INC.,
ASSET BACKED PASS-THROUGH
CERTIFICATE SERIES 2003-11 UNDER THE
POOLING AND SERVICING AGREEMENT
DATED AS NOVEMBER 1, 2003
505 CITY PARKWAY WEST, SUITE 100
ORANGE, CA 92868,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION -LAW
Plaintiff,
v.
DIANNE KINAVEY,
48 SUSSEX ROAD
CAMP HILL, PA 17011,
Defendant.
No. OS-3175 CIVIL, TERM
State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.):
Preliminary Objections to Defendant's Amended Answer & New Matter
Identify counsel who will argue cases:
(a) for plaintiff:
Pe~QV B. Greenfeld, Esquire, Reed Smith LLP 2500 One Liberty Place
1650 Market Street, Philadelphia PA 19103-7301
(b) for defendant:
Geoffrey M. Birinaer Esquire MidPenn Legal Services 8 Irvine Row Carlisle PA 17013
I will notify ail parties in writing within two days that this case has been listed for argument.
4. Argument Court Date:
Dated: October 18, 2005
Henry ~`.~eichner
Peggy B. Greenfeld
REED SMITH LLr
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215)851-8100
Co-counsel for Plaintiff
__,
"
-,
_- '
~4
DEUTSCHE BANK
NATIONAL TRUST
COMPANY, AS TRUSTEE
OF AMERIQUEST
MORTGAGE SECURITIES
INC., ASSET BACKED
PASS-THROUGH
CERTIFICATE SERIES
2003-I I UNDER THE
POOLING AND
SERVICING AGREEMENT:
DATED AS NOVEMBER 1.:
2003, 505 CITY
PARKWAY WEST,
SUITE 100, ORANGE,
CA 92868,
Plaintiff
v.
DIANA K. KINAVEY,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO. OS-3175 CIVIL TERM
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO
DEFENDANT'S AMENDED NEW MATTER
BEFORE HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this 8`~ day of February, 2006, upon consideration of
Plaintiff s Preliminary Objections to Defendant's [Amended] New Matter, and for
the reasons stated in the accompanying opinion, it is ordered and directed as
follows:
I. Plaintiffs preliminary objection in the nature of a
demurrer to Defendant's affirmative defense of
unconscionability is sustained, and that defense is dismissed;
..,,,..
~{ ~
~•~,~
2. In all other respects, Plaintiff's preliminary objections
are denied.
BY THE COURT,
~~ .
J. esley Ler, ., 3.
Henry F. Reichner, Esq.
Peggy B. Greenfeld, Dsq.
Reed Smith, LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
Attorneys for Plaintiff
Patrick Cicero, Esq.
213A North Front Street
Harrisburg, PA 17101
Attorney for Defendant
~i.,0~
~~ ,
DEUTSCHE BANK
NATIONAL TRUST
COMPANY, AS TRUSTEE
OF AMERIQUEST
MORTGAGE SECURITIES
INC.. ASSET BACKED
PASS-THROUGH
CERTIFICATE SERIES
2003-lliJNDER THE
POOLING AND
SERVICING AGREEMENT:
DATED AS NOVEMBER 1,:
2003, 505 CITY
PARKWAY WEST,
SUITE 100, ORANGE,
CA 92868,
Plaintiff
v.
DIANA K. KINAVEY,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO. OS-3175 CIVIL TERM
IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO
DEFENDANT'S AMENDED NEW MATTER
BEFORE HESS and OLER, JJ.
OPINION and ORDER OF COURT
OLER, J., February 8, 2006.
For disposition in this mortgage foreclosure case are preliminary objections
in the nature of a demurrer filed by Plaintiff to various affirmative defenses set
forth in Defendant's amended new matter. The preliminary objections were
argued on November 23, 2005.
For the reasons stated in this opinion, Plaintiff s preliminary objections will
be sustained in part and denied in part.
STATEMENT OF FACTS
The allegations of Plaintiffs complaint, in pertinent part, may be
summarized as follows: Plaintiff is assignee of a mortgagee, and Defendant is
mortgagor, with respect to a mortgage dated September 11, 2003, in the principal
amount of $92,195.05, on certain realty in Cumberland County.' Plaintiff's
assignor, the original mortgagee, was Ameriquest Mortgage Company ~
Defendant defaulted on the mortgage by failing to make a monthly payment
by a due date on December 1, 2004.' The default ultimately resulted in an
acceleration of the amount due under the mortgage.4
To the extent required by law, Notice of Default, Notice of Intent To
Foreclose and Notice of Homeowner's Emergency Assistance Program were sent
to Defendant.' The period of a temporary stay of the foreclosure expired. The
amount due and secured by the mortgage as of the filing of the complaint on June
21, 2005, was $102,073.66, plus interest and other costs and charges associated
with the suit and prospective sheriff's sale.
The allegations of Defendant's amended answer with new matter, in
pertinent part, may be summarized as follows: The mortgaged property is
Defendant's residence.R The loan in question from Plaintiffs assignor,
Ameriquest, to Defendant, arose out of a desire by Defendant to borrow
~ Complaint in Mortgage Foreclosure, ¶¶l-3, 6, filed June 21, 2005 (hereinafter Compl. _~.
' Compl. ¶3.
' Compl. ¶5.
' Id.
s Compl. ¶8.
r, /d.
' Compl. ¶¶6-7.
Defendant's Amended Answer to Plaintiffs Complaint with New Matter and Affirmative
Defenses, ¶¶15-17, filed August 18, 2005 (hereinafter Def.'s Amended Answer ~.
2
$20,000.00 to purchase a mobile home;` existing liens on Defendant's residence
were paid off with the bulk of the loan, in order for Ameriquest to be secured by a
first mortgage. ~ °
Defendant was induced to enter into the transaction by a promise by
Ameriquest that a line of credit in the amount of $10,000.00 would be made
available to Defendant to supplement the net proceeds of the loan ($8,255.00) for
purposes of facilitating the mobile home purchase ~ and assurances that the loan in
question would have a lower interest rate than her present mortgage.12 The line of
credit was not provided by Ameriquest following settlement, is the interest rate on
the new loan was substantially higher than that of the prior mortgage loan,14 the
three-day rescission period applicable to the transaction was rendered illusory by
Ameriquest's conduct in pre-dating the applicable provision by three days on the
Ivan documents,15 and the nature of the loan was transformed from an instrument
of investment into a mere refinancing of personal indebtedness.~b A representative
of Ameriquest told Defendant "that she was stuck with the loan product that she
got."~ ~
Affirmative defenses to the mortgage foreclosure, raised by Defendant in
her pleading, are based upon (a) a right to rescind the transaction pursuant to the
federal Truth-in-Lending Act and regulations pursuant thereto as they relate to
notice of xhe three-day rescission period,18 (b) deceptive practices under the
Def.'s Amended Answer ¶¶12, 17.
10 Def.'s Amended Answer ¶20.
~ ~ De£'s Amended Answer ¶¶21-22, 24.
~' Def.'s Amended Answer ¶9.
De£'s Amended Answer ¶¶26-28.
~`' Def.'s Amended Answer ¶¶13-14, 21, 24.
's Def.'s Amended Answer ¶25.
~~ Def.'s Amended Answer¶¶21-22, 30.
~' Def.'s Amended Answer ¶28.
is De£'s Amended Answer ¶¶42-44.
3
Pennsylvania Consumer Protection Law,~~ (c) unconscionability,20 and (d)
common law fraud ~~
Plaintiff's preliminary objections to Defendant's new matter assert that (a)
the federal Truth-in-Lending Act cvl not be used as a defense in a mortgage
foreclosure action,~~ (b) the Pennsylvania Consumer Protecfion Law does not
apply to the business-purpose loan herein and does not contemplate attribution of
an assignor's violations of the act to an assignee,' (c) the elements of adhesion
and unreasonable benefit to the other party requisite to a defense of
unconscionability are lacking in the transaction,24 and (d) fraud of an assignor of a
mortgage is not a defense to a claim by the assignee against the mortgagor.zs
DISCUSSION
Demurrers. In reviewing a preliminary objection in the nature of a
demurrer, which challenges the legal sufficiency of a pleading, the court "must
accept all material facts set forth in the [pleading,] as well as all the inferences
reasonably deducible therefrom as true" Powell v. Drumheller, 534 Pa. 484, 489,
653 A_2d 619, 621 (1995) (citations omitted). A preliminary objection in the form
of a demurrer should be sustained only when, "on the facts averred, the ]aw says
with certainty that" the position challenged by the demurrer can not prevaii. Id. at
489, 653 A.2d at 621. If any lingering doubt remains as to whether to sustain the
demurrer, "this doubt should be revolved in favor of [the nonmoving party]."
Presbyterian Medical Center v. Budd, 2003 PA Super. 323, ¶6, 832 A.2d 1066,
1070 (2003).
j9 Def.'s Amended Answer¶¶S1-54.
20 Def.'s Amended Answer ¶¶56-63.
~~ Def.'s Amended Answer¶¶65-70.
Plaintiffs Preliminary Objections to Defendant's New Matter, ¶¶5-6, filed August 29, 2005
(hereinafter Pi.'s Prelim. Obj. ~.
'~ PL's Prelim. Obj. ¶7.
'A PL's Prelim.Obj_¶8.
"PL's Prelim. Obj. ¶9.
4
Federal Truth-in-Leading Act. Under Cumberland County Rule of
Procedure 1028(c)(6), "[i]ssues raised, but not briefed, shall be deemed
abandoned." In the present case, the issue of whether a violation of the federal
"Cruth-in-Lending Act can be used as a defense in a mortgage foreclosure action
has not been briefed by Plaintiff. As a consequence, for purposes of Plaintiff's
preliminary objections the issue has been waived.
Pennsylvania Consumer Protection Law. "The rule is that the assignee of a
mortgage takes it subject to all defenses available against the assignor ...."
Kepler v. Kepler, 330 Pa. 441, 447, 199 A. 19&, 203 (1938) (citations omitted).
Given this principle, and the dispute in the pleadings as to whether, as events
transpired, the loan to Defendant can fairly be characterized as for business
purposes, the court is not in a position at this stage of the case to resolve the issue
of whether Defendant's affirmative defense under Pcnnsylvauia's Consumer
Protection Law is devoid of merit.
Unconscionabiliry. "Unconscionability has generally been recognized to
include an absence of meaningful choice on the part of one of the parties together
with contract terms which are unreasonably favorable to the other party."
Germantown Manufacturing Co. v. Rawlinson, 341 Pa. Super. 42, 55, 491 A.2d
138, 145 (1985} (citations omitted). In the present ease, the requisite element of
adhesion does not appear from the averments in Defendant's pleading and
Plaintiff s preliminary objection as to this defense will be sustained.
Fraud. As previously noted, "[t]he rule is that the assignee of a mortgage
takes it subject to all defenses available against the assignor ...." Kepler v.
Kepler, 330 Pa. 441, 447, 199 A. 198, 203 (1938) (citations omitted). Plaintiff's
argument as to the defense of fraud herein, premised upon a contrary theory,
therefore can not prevail.
For the foregoing reasons, the following order will be entered:
5
ORDER OF COURT
AND NOW, this 8`~' day of February, 2006, upon consideration of
Plaintiff s Preliminary Objections to Defendant's [Amended] New Matter, and for
the reasons stated in the accompanying opinion, it is ordered and directed as
follows:
1. Plaintiff's preliminary objection in the nature of a
demurrer to Defendant's affirmative defense of
unconscionability is sustained, and that defense is dismissed;
2. In all other respects, Plaintiff s preliminary objections
are denied.
BY THE COURT.
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Henry F. Reichner, Esq.
Peggy B. Greenfeld, Esq.
Reed Smith, LLP
2500 One Eiberty Place
1650 Market Street
Philadelphia, PA 19103
Attorneys for Plaintiff
Patrick Cicero, Esq.
213A North Front Street
Harrisburg, PA 17101
Attorney for Defendant
6
REED SMITH LLP
By: Henry F. Reichner
Identification No. 46486
By: Peggy B. Greenfeld
Identification No. 73377
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 851-8100
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF AMERIQUEST
MORTGAGE SECURITIES INC.,
ASSET BACKED PASS-THROUGH
CERTIFICATE SERIES 2003-11 UNDER THE
POOLING AND SERVICING AGREEMENT
DATED AS NOVEMBER 1, 2003
505 CITY PARKWAY WEST, SUITE 100
ORANGE, CA 92868,
Plaintiff,
v.
DIANA K. KINAVEY,
Defendant.
Co-Counsel for Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
No. OS-3175 CIVIL TERM
CNIL ACTION -LAW
PLAINTIFF'S REPLY TO DEFENDANT'S
AMENDED NEW MATTER AND AFFIRMATIVE DEFENSES
Plaintiff Deutsche Bank National Trust Company, as Trustee of
Ameriquest Mortgage Securities, Inc., Asset Backed Pass-Through Certificates, Series
2003-11 Under the Pooling and Servicing Agreement Dated as of November 1, 2003
("Plaintiff'), by its undersigned counsel, Reed Smith LLP, hereby responds to the
Amended New Matter and Affirmative Defenses of Defendant Diana K. Kinavey
("Defendant") according to its numbered paragraphs as follows:
10. Denied. The allegations set forth in Paragraph 10 are conclusions
of law to which no responsive pleading is required.
11. Admitted in part; denied in part. It is admitted that Defendant
entered into an Agreement of Sale to purchase a mobile home for the purpose of renting it
out to supplement her income. By way of further response, after reasonable
investigation, Plaintiff is without knowledge or information sufficient to form a belief as
to the truth of the remaining allegations set forth in Paragraph 11, and, therefore, denies
the same.
12. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Paragraph 12, and, therefore, denies the same.
13. Admitted in part; denied in part. It is admitted only that Defendant
had a first mortgage on her home of $58,479.00. By way of further response, after
reasonable investigation, Plaintiff is without knowledge or information sufficient to form
a belief as to the truth of the remaining allegations set forth in Paragraph 13, and,
therefore, denies the same. By way of further response, the allegations set forth in
Paragraph 13 refer to a writing which speaks for itself, and any attempt to characterize its
terms is improper and strictly denied.
14. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Paragraph 14, and, therefore, denies the same. By way of further response, the
allegations set forth in Paragraph 14 refer to a writing which speaks for itself, and any
attempt to characterize its terms is improper and strictly denied.
15. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Paragraph 15, and, therefore, denies the same.
16. Admitted.
17. Admitted in part; denied in part. It is admitted that Defendant
contacted Ameriquest to request a loan for the purpose of obtaining funds to purchase a
mobile home that she intended to rent out for supplemental income. After reasonable
investigation, Plaintiff is without knowledge or information sufficient to form a belief as
to the truth of the remaining allegations set forth in Paragraph 17, and, therefore, denies
the same.
18. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Paragraph 18, and, therefore, denies the same.
19. Admitted in part; denied in part. It is admitted that Defendant
spoke to an agent of Ameriquest to request a loan. It is denied that Janet Zelt informed
Defendant that the loan would be "no problem," or that it could be done quickly and at a
better rate than the one Defendant had with Member's 15`
20. Denied as stated. It is admitted that prior to closing, Ameriquest
notified Defendant that it would have to pay off her line of credit with Citizens' Bank in
order to provide her with a mortgage loan. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as to the truth of the
remaining allegations set forth in Paragraph 20, and, therefore, denies the same.
21. Admitted in part; denied in part. It is admitted that prior to
closing, Ameriquest notified Defendant that she would be receiving approximately
$8,255.00 in loan disbursements and notified Defendant what the interest rate on her new
loan would be. It is denied that Janet Zelt ever said to Defendant "you need the loan,
don't you?" After reasonable investigation, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth of the remaining allegations set forth in
Paragraph 21, and, therefore, denies the same.
22. Denied as stated. It is denied that Janet Zelt informed Defendant
that she or Ameriquest could get her a line of credit. After reasonable investigation,
Plaintiff is without knowledge or information sufficient to form a belief as to the truth of
the remaining allegations set forth in Paragraph 22, and, therefore, denies the same.
23. Admitted in part; denied in part. It is denied that the loan closing
occurred on September 15, 2003, and it is denied that Miriam Roman-Carvajal was the
closing agent. It is admitted only that Miriam Roman-Carvajal was an employee of
Ameriquest at the time of the loan closing.
24. Admitted in part; denied in part. It is admitted only that on
September 11, 2003, Ameriquest provided Defendant with a loan in the principal amount
of $92,700.00, which was secured by a mortgage on her home residence, with initial
monthly payments in the amount of $847.97 and an initial variable interest rate of 10.5%.
By way of further response, after reasonable investigation, Plaintiff is without knowledge
or information sufficient to form a belief as to the truth of the remaining allegations set
forth in Paragraph 24, and, therefore, denies the same.
25. Denied as stated. It is denied that the loan closing occurred on
September 15, 2003. After reasonable investigation, Plaintiff is without knowledge or
information sufficient to form a belief as to the truth of the remaining allegations set forth
in Paragraph 25, and, therefore, denies the same.
26. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Paragraph 26, and, therefore, denies the same.
27. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Pazagraph 27, and, therefore, denies the same.
28. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Pazagraph 28, and, therefore, denies the same.
29. Denied as stated. It is denied that Janet Zelt made the
representations alleged in this Paragraph. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as to the truth of the
remaining allegations set forth in Paragraph 29, and, therefore, denies the same. Byway
of further response, the allegations set forth in Paragraph 29 are conclusions of law to
which no responsive pleading is required. To the extent that these allegations maybe
deemed to be factual, they are denied.
30. Denied. The allegations set forth in Paragraph 30 are denied.
31. Denied. The allegations set forth in Paragraph 31 are conclusions
of law to which no responsive pleading is required. To the extent that these allegations
maybe deemed to be factual, they are denied.
32. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Paragraph 32, and, therefore, denies the same.
33. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Paragraph 33, and, therefore, denies the same.
34. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Paragraph 34, and, therefore, denies the same. Byway of further response, the
allegations set forth in Paragraph 34 refer to a writing which speaks for itself, and any
attempt to characterize its terms is improper and strictly denied.
35. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Paragraph 35, and, therefore, denies the same. By way of further response, the
allegations set forth in Paragraph 35 refer to a writing which speaks for itself, and any
attempt to characterize its terms is improper and strictly denied.
36. Admitted in part; denied in part. It is admitted only that
Ameriquest paid the amounts stated in Paragraph 36 towards Defendant's taxes. After
reasonable investigation, Plaintiff is without knowledge or information sufficient to form
a belief as to the truth of the remaining allegations set forth in Paragraph 36, and,
therefore, denies the same.
37. Admitted in part; denied in part. It is admitted only that on or
about November 18, 2004, a conference call took place among a representative of
Ameriquest, a representative of the Cumberland County Tax Bureau ("Tax Bureau") and
Defendant, during which time the Tax Bureau stated that Defendant had a payment plan
with it for her 2003 delinquent taxes and that it would send Ameriquest a refund for the
$486.83 2003 taxes Ameriquest had previously paid. After reasonable investigation,
Plaintiff is without knowledge or information sufficient to form a belief as to the truth of
the remaining allegations set forth in Paragraph 37, and, therefore, denies the same.
38. Admitted in part; denied in part; It is admitted only that in its
January 29, 2005 letter to the Pennsylvania Attorney General, Ameriquest offered to
accept a refund from the Tax Bureau of Defendant's 2004 taxes that Ameriquest
previously paid, and then credit and cancel the escrow account. After reasonable
investigation, Plaintiff is without knowledge or information sufficient to form a belief as
to the truth of the remaining allegations set forth in Paragraph 38, and, therefore, denies
the same. By way of further response, the allegations set forth in Paragraph 38 refer to a
writing which speaks for itself; and any attempt to characterize its terms is improper and
strictly denied.
39. Denied as stated. It is admitted only that as a result of the negative
balance in Defendant's escrow account, her monthly payments increased. The remaining
allegations set forth in Paragraph 39 are denied.
40. Denied as stated. It is admitted only that the mortgage at issue in
this case is in default. The remaining allegations set forth in Paragraph 40 are denied.
FIRST AFFIRMATIVE DEFENSE
Truth-in-LendinE: Rescission
41. Plaintiff incorporates by reference its responses to Paragraphs 10
through 40 above as if fully set forth herein.
42. Denied. The allegations set forth in Paragraph 42 and its subparts
(a) and (b) constitute conclusions of law to which no response is required. To the extent
that these allegations maybe deemed to be factual, they are denied.
43. Denied. The allegations set forth in Paragraph 43 are conclusions
of law to which no responsive pleading is required.
44. Denied. The allegations set forth in Paragraph 44 are conclusions
of law to which no responsive pleading is required. To the extent that these allegations
maybe deemed to be factual, they are denied.
45. Denied. The allegations set forth in Paragraph 45 are conclusions
of law to which no responsive pleading is required.
46. Denied. The allegations set forth in Paragraph 46 are conclusions
of law to which no responsive pleading is required.
47. Denied. The allegations set forth in Paragraph 47 are conclusions
of law to which no responsive pleading is required.
48. Denied. The allegations set forth in Paragraph 48 are conclusions
of law to which no responsive pleading is required. To the extent that these allegations
may be deemed to be factual, they are denied.
49. Denied. The allegations set forth in Paragraph 49 are conclusions
of law to which no responsive pleading is required. To the extent that these allegations
may be deemed to be factual, they are denied.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant,
and costs and attorneys' fees and such other relief as this Court may deem equitable and
just.
SECOND AFFIRMATIVE DEFENSE
Deceptive Practices
50. Plaintiff incorporates by reference its responses to Paragraphs 10
through 49 above as if fully set forth herein.
51. Denied. The allegations set forth in Paragraph 51 are conclusions
of law to which no responsive pleading is required. To the extent that these allegations
maybe deemed to be factual, they are denied.
52. Denied. The allegations set forth in Paragraph 49 are conclusions
of law to which no responsive pleading is required. To the extent that these allegations
may be deemed to be factual, they are denied.
53. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Paragraph 53, and, therefore, denies the same.
54. Denied. The allegations set forth in Paragraph 54 are conclusions
of law to which no responsive pleading is required. To the extent that these allegations
may be deemed to be factual, they are denied.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant,
and costs and attorneys' fees and such other relief as this Court may deem equitable and
just.
THIRD AFFIRMATIVE DEFENSE
Unconscionability
55 - 63. Plaintiff makes no response to the averments contained in
Defendant's Third Affirmative Defense, as the Court sustained Plaintiff s Preliminary
Objection in the Nature of a Demurrer to this Affirmative Defense and dismissed this
Defense.
FOURTH AFFIRMATIVE DEFENSE
Common Law Fraud
64. Plaintiff incorporates by reference its responses to Paragraphs 10
through 63 above as if fully set forth herein.
65. Denied. The allegations set forth in Paragraph 65 are conclusions
of law to which no responsive pleading is required. To the extent that these allegations
maybe deemed to be factual, they are denied.
66. Denied. The allegations set forth in Paragraph 66 are conclusions
of law to which no responsive pleading is required. To the extent that these allegations
may be deemed to be factual, they are denied.
67. Denied. The allegations set forth in Paragraph 67 are denied.
68. Denied. After reasonable investigation, Plaintiff is without
knowledge or information sufficient to form a belief as to the truth of the allegations set
forth in Paragraph 68, and, therefore, denies the same.
69. Denied. The allegations set forth in Paragraph 69 are conclusions
of law to which no responsive pleading is required. To the extent that these allegations
maybe deemed to be factual, they are denied.
70. Denied. The allegations set forth in Paragraph 70 are conclusions
of law to which no responsive pleading is required. To the extent that these allegations
may be deemed to be factual, they are denied.
WHEREFORE, Plaintiff demands judgment in its favor and against Defendant,
and costs and attorneys' fees and such other relief as this Court may deem equitable and
just.
i' ~ A
By: vS
Hen . Reichner, Esquire
Attorney I.D. No. 46486
Peggy B. Greenfeld, Esquire
Attorney LD. No. 73377
REED SMITH LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215)851-8100
Co-Counsel for Plaintiff
Dated: March 17, 2006
VERIFICATION
I, Clarisa Gastelum, state that I am authorized to make this verification on behalf
of the Plaintiff Deutsche Bank National Trust Company, as Trustee of Ameriquest
Mortgage Securities, Inc., Asset Backed Pass-Through Certificates, Series 2003-11
Under the Pooling and Servicing Agreement Dated as of November 1, 2003 ("Plaintiff').
I verify that the averments contained in the foregoing Plaintiff s Reply to Defendant's
Amended New Matter and Affirmative Defenses, are true and correct to the best of my
knowledge, information and belief. This Verification is made subject to the penalties for
unsworn falsifications to authorities set forth in
Dated: March ~, 2006
CERTIFICATE OF SERVICE
I, Peggy B. Greenfeld, hereby certify that on this 17th day of March, 2006, I
served a true and correct copy of the foregoing Plaintiff s Reply to Defendant's Amended
New Matter and Affirmative Defenses via first class U.S. mail, postage prepaid, upon the
following counsel of record:
Geoffrey M. Biringer, Esquire
MidPenn Legal Services
8 Irvine Row
Carlisle, PA 17013
Patrick Cicero, Esquire
MidPenn Legal Services
213-A North Front Street
Harrisburg,PA 1710]-14
Francis S. Hallinan, Esquire
Phelan, Halinan & Schmieg
One Perm Center Plaza, Suite 1400
Philadelphia, PA 19103
Peggy .~ reenfeld
~~~ R~
_..J 'Tl
T
7 ~
1
^J
P [:f*
~ ~
-n 7i
v_ ?n
c,~
..
'=i
--
REED SMITH LLP
By: Henry F. Reichner
Identification No. 46486
By: Barbara K. Hager
Identification No. 88832
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 851-8100
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF AMERIQUEST
MORTGAGE SECURITIES 1NC.,
ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES 2003-11 UNDER THE
POOLING AND SERVICING AGREEMENT
DATED AS NOVEMBER 1, 2003,
Plaintiff,
v.
DIANA K. KINAVEY,
Defendant.
Co-Counsel for Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
No. OS-3175 CIVIL TERM
CIVIL ACTION -LAW
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of Barbara K. Hager and Reed Smith LLP as co-counsel in
the above matter.
Barbara K. Hager, E ire
REED SMITH LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 851-8100
(215) 851-1420 (Facsimile)
Email: bhager@reedsmith.com
Dated: September 25, 2006
PHLLIB-943786.1-BKHAGER 9/25/06 8:58 AM
CERTIFICATE OF SERVICE
1 hereby certify that a true and con-ect copy of the foregoing Enhy of Appearance
was caused to be served by first-class mail, postage prepaid, this 25th day of September, 2006,
on the following:
Geoffrey M. Biringer, Esquire
MIDPENN LEGAL SERVICES
401 E. Louther Street
Carlisle, PA 17013
Patrick Cicero, Esquire
MIDPENN LEGAL SERVICES
213-A North Front Street
Harrisburg, PA 17101
Francis S. Hallman, Esquire
PHELAN, HALLINAN & SCHMIEG
One Penn Center Plaza, Suite 1400
Philadelphia, PA 19103
a ara K. Hager
PHLLIB-943786.1-BKHAGER 9/25106 8:58 AM
~
t
.-
,, ~
4 t l C "'~ -tl ~"fS
_
~ ~
~
~
9
~~
w
'~' _
~1 ~1
_ ~L
~
t.,'` ~..
~ r
ry
~+ / ~.
. ~ to
'-..
• eta ''~,~~
~
,y' ~.~' .t
~. „~
'
•
~,
/ ~
REED SMITH LLP
By: Henry F. Reichner
Identification No. 46486
By: Barbara K. Hager
Identification No. 88832
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
(215) 851-8100
DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE OF AMERIQUEST
MORTGAGE SECURITIES INC.,
ASSET BACKED PASS-THROUGH
CERTIFICATES, SERIES 2003-11 UNDER THE
POOLING AND SERVICING AGREEMENT
DATED AS NOVEMBER 1, 2003,
Plaintiff,
v.
DIANA K. KINAVEY,
Defendant
Co-Counsel for Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
No. OS-3175 CIVIL TERM
CIVIL ACTION -LAW
PRAECIPE TO DISCONTINUE
TO THE PROTHONOTARY:
Kindly mark the above-named action discontinued in accordance with Rule 229
of the Pennsylvania Rules of Civil Procedure.
Barbara K. Haagei!Esquire
REED SMITH, LLP
2500 One Liberty Place
1650 Market Street
Philadelphia, PA 19103
Tel: (215) 851-8100
Fax: (215) 851-1420
Email: mwojtylak@reedsmith.com
Dated: April 11, 2007
,. w
CERTIFICATION OF SERVICE
I hereby certify that I caused a true and correct copy of the foregoing Praecipe to
Discontinue to be served by first-class mail, postage prepaid, this 11`" day of April, 2007, upon
the following:
Geoffrey M. Biringer, Esquire
MIDPENN LEGAL SERVICES
401 E. Louther Street
Carlisle, PA 17013
Patrick Cicero, Esquire
MIDPENN LEGAL SERVICES
213-A North Front Street
Harrisburg, PA 17101
Francis S. Hallinan, Esquire
PHELAN, HALLINAN & SCHMIEG
One Penn Center Plaza, Suite 1400
Philadelphia, PA 19103
c~
~.,
~;-n
..... -.,
c7 -
`
'
`~
~;';
.~ ~ ~_-
_ r..~ ,
_
1
PHELAN HALLINAN & SCHMIEG, LLP
BY: FRANCIS S. HALLINAN, ESQUIRE
Identification No. 62695
One Penn Center at Suburban Station
1617 John F. Kennedy Boulevard, Suite 1400
Philadelphia, PA 19103-1814
(215 563-7000
Deutsche Bank National Trust Company
Diana K. Kinavey
Plaintiff
vs.
Defendant
PRAF,C'iPF,
TO THE PROTHONOTARY:
ATTORNEY FOR PLAINTIFF
Court of Common Pleas
Civil Division
Cumberland County
No. 2005-03175
Please mark the above referenced case Discontinued and Ended without
prejudice.
Please mark the above referenced case Settled, Discontinued and Ended.
Please mark Judgments satisfied and the Action settled, discontinued and
ended.
Please Vacate the judgment entered and mark the action discontinued and
ended without prejudice.
X Please withdraw the complaint and mark the action discontinued and
ended without prejudice.
Date: ~" u
Francis S. Hallinan, Esquire
Attorney for Plaintiff
117958
r-.~
C`, <-:,
_ ~
_ `~ --~
.~..~ ,~,
~.?
--
-__r
-- -
? ~`
-1
y;
~_._.
e
- ^}
..~:
-../