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Home My WebLink About06-1396 Michael J. Collins, Esquire J.D. Number 200427 MARTSON DEARDORFF WILLIAMS & OTTO Ten East High Street Carlisle, P A 17013 717-243-3341 Attorneys for Plaintiffs RICHARD T. SCALIA and SERENA M. SCALIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. 06 - I J 910 CIVIL TERM v. : CIVIL ACTION LAW CHICAGO TITLE INSURANCE CO., Defendant NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the court without furthernotice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiffs. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LA WYERA T ONCE. IF YOU DO NOT HA VEALAWYER,GOTOOR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER, IF YOU CANNOT AFFORD TO HIRE A LA WYER, THIS OFFICE MA Y BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 RICHARD T. SCALIA and SERENA M. SCALIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO, 06 - CIVIL TERM v. : CIVIL ACTION LAW CHICAGO TITLE INSURANCE CO., Defendant A VISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usteddesea defenderse de las quejas expuestas en las paginas siguientes, debe tomar accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y el aviso. Usted debe presentar comparecencia escrita en persona 0 por abogado y presentar en la Corte por escrito sus defensas 0 sus objeciones alas demandas en su contra. Se Ie avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso 0 notificacion por cualquier dinero reclamado en lademanda 0 por cualquier otra queja 0 compensacion reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0 PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDAA UN ABODAGO INMEDIATAMENTE. SIUSTEDNOTlENE o NO CONOCE UN ABOGADO, V A Y A 0 LLAME A LA OFICINA EN LA DIRECClON ESCRIT A ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 F:\fILES\DA T AFlLEIGeneral\CurrenIII0743.I_complaint Created: 218/06 243PM Revised 3/13/062:02PM RICHARD T. SCALIA and SERENA M. SCALIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : NO. 06 - /2QIp CIVIL TERM v. : CIVIL ACTION LAW CHICAGO TITLE INSURANCE CO., Defendant COMPLAINT AND NOW, comes the Plaintiffs, RICHARD T. SCALIA and SERENA M. SCALIA, by and through their attorneys, MARTSON DEARDORFF WILLIAMS & OTTO, and avers as follows: I. Plaintiffs are adult individuals, residing at 382 I F etterhof Chapel Road, Chambersburg, Pennsylvania 17201. 2, Defendant is a corporation with an address of 6 Becker Farm Road, Roseland, New Jersey 07068, which regularly conducts business in Cumberland County, Pennsylvania. 3 . On August 4, 1997, Plaintiffs obtained a loan from third party, Eastern Mortgage Services, Inc. (hereinafter "EMS"), in the amount of One Hundred Ninety-three Thousand Five Hundred Dollars ($193,500.00), evidenced by an Adjustable Rate Note dated August 4, 1997, executed by Plaintiffs and delivered to EMS. 4. As security for the Note, Defendants executed and deliv,~red to EMS a Mortgage (hereinafter "Mortgage") dated August 4, 1997, in the amount of One Hundn~d Ninety-three Thousand Five Hundred Dollars ($193,500.00), and filed with the Recorder of Deeds for Franklin County in Book 1148, Page 103, secured by the Plaintiffs' residence. True and accurate copies ofthe Note and Mortgage are attached hereto as "Exhibit A" and "Exhibit B," respectively. 5. EMS was a wholly-owned subsidiary of Dauphin Deposit Bank and Trust Company. 6. Dauphin Deposit Bank and Trust Company merged with The First National Bank of Maryland, and then changed its name to Allfirst Bank. 7. Plaintiffs' property suffered fire damage. 8, As a result of fire damage, Erie Insurance Exchange issued a check to Allfirst in the amount of One Hundred Seventy-one Thousand Nine Hundred Twenty Dollars and Seventeen Cents ($171,920.17). 9. This amount was then applied against the Mortgage, reducing Plaintiffs' liability under the same to Eighteen Thousand Five Hundred Forty"two Dollars and One Cent ($18,542.01). 1 O. On or about October 23,2002, Allfirst Bank initiated a foreclosure action against Plaintiffs asking for the $18,542.01 principal on the Mortgage and incidental costs including attorneys fees in the amount of$I,500.00 and escrow advances of$476.00. 11. On or about January, 2003, as a result of settlement ofthe suit, Allfirst Bank assigned its interest under the Mortgage to third party Old Republic National Title Insurance Company (hereinafter "Old Republic"). 12. Old Republic assigned its rights under the Mortgage to Defendant Chicago Title Insurance, Inc (hereinafter "Chicago"). 13. Although the principal on the Mortgage remained $18,542.01, the incidental costs that Old Republic represented to Defendant, and Defendant assumed, skyrocketed to attorneys fees in the amount of$II,156.35 and escrow advances of$13,890.00. 14. Both the attomeys fees and escrow advances are unreasonable and are the subject matter of this law suit. 15. In the course of a refinancing in 2005, Plaintiffs satisfied the: full amount demanded by Defendant under the Mortgage, however, upon review of the escrow advance and attorneys fee charges, Plaintiffs decided to initiate this law suit. COUNT I - CONSUMER PROTECTION ACTION PURSUANT TO 73 P,S, & 201-9,2 16. Paragraphs 1-15 are incorporated herein by reference. 17. Plaintiffs originally entered into a Mortgage Agreement with EMS, Chicago's predecessor in interest, in order to fund a loan for the purchase of his residence. Thus, Plaintiffs are permitted to initiate an action under 73 P.S. 9201-9.2, Smith v, Commercial Banking Corp., 866 F.2d 576 (3d. Cir. 1989). 18. Plaintiffs have been injured by Chicago's unfair conduct in two ways: I) in the assessing of Plaintiffs escrow advance fees in the unreasonable amount of$13,890.00; and 2) in the assessing of Plaintiffs legal fees and costs in the amount of$11,156.35. 19. With respect to the escrow advance fees, Plaintiffs have been paying real estate and hazard insurance premiums, so the escrow advance service has been supe:rfluous and unnecessary. 20. Despite the fact that an escrow advance system of paying real estate taxes was not needed for the subject Mortgage, Plaintiffs were assessed these fees by Chicago. 21. The superfluous and unnecessary nature ofthe Chicago's use of escrow for the subject Mortgage renders the assessing of Plaintiffs fees in the amount of$13,890.00 an unfair business practice constituting a cause of action under Pennsylvania's consumer protection law. 73 P.S. 9201- 9.2. 22. With respect to attorneys fees, when Allfirst brought its f4)reclosure action against Plaintiffs on or about October 23, 2002, it demanded $1,500 in its compllaint. 23. Soon after the initiation of the foreclosure action, Allfirst assigned its rights under the Mortgage to Old Republic. 24. In that relatively short amount of time, Allfirst's legal fees suddenly sky-rocketed to $5,977.88, 25. Since that time, Old Republic has held the rights and responsibilities under the Mortgage until it assigned its interest in the Mortgage to Chicago. 26, Although ostensibly there have been few legal issues to deal with on the Mortgage since Allfirst's foreclosure action, Old Republic has somehow generated $5,178.47, bringing the grand total oflegal fees assessed against Plaintiffs to $11,156.35. 27. The $11,156.35 oflegal fees have been based offa principal of$18,542.01. 28. The assessing of$II,156.35 in legal fees based offa $18,:542.01 principal constitutes an unfair business practice, which constitutes a cause of action under 73 P.S. S 201-9.2. 29. Since the initiation of the Mortgage in 1997, the details ofthe attorneys fees that have been assessed against Plaintiffs have never been given to him. 30. No hourly billing statements have been provided to Plaintiffs. 31. No notes indicating how time was spent has ever been given to Plaintiffs. 32. No information regarding the billing rates of attorneys has ever been given to Plaintiffs. 33. Without such information, the assessing oflegal fees against Plaintiffs constitutes a cause of action under 73 P.S. S 201-9.2. 34. As a result of Defendant's unlawful and unfair business practice of assessing unnecessary escrow advances and legal fees, Plaintiffs have suffered ascertainable damages in the amount of $13,890.00 for assessed escrow advance fees and $11,156.35 for assessed legal fees, for a grand total of$25,046.35. 35. 73 P.S. S 201-9.2 (a) permits the court to treble ascertainable damages and award reasonable attorneys fees to Plaintiffs for bringing this action. WHEREFORE, based on the foregoing, Plaintiffs respectfully demand judgment in their favor in the amount of$75,139.05, which represent treble damages pursuant to 73 P.S. S 201-9.2(a), together with interest thereon and costs, and reasonable attorneys fees pursuant to also to 73 P.S. S 201-9.2(a), and any other remedy this Court may deem appropriate. COUNT 11- UNREASONABLE ATTORNEYS FEES PURSUANT TO 41 P.S, & 406 36. Paragraphs 1-35 are incorporated herein by reference. 37. Under 41 P.S. S 406, no residential mortgage lender shall receive attorneys fees unless they are reasonable and actually incurred. Id. at S 406(1,,2). 38. To the extent that legal fees are generated prior to the commencement of foreclosure or other legal action, they can only be assessed to liable mortgagor up to $50. Id. at S 406(3). 39. Additionally, no attorneys fees may be charged for legal expenses incurred prior to the thirty-day notice period for foreclosure. Jd. 40. In the present action, no hourly billing statements have be(~n provided to Plaintiffs. 41. No notes indicating how time was spent has ever been given to Plaintiffs, 42. No information regarding the billing rates of attorneys has ever been given to Plaintiffs. 43. Without information relating to the legal fees assessed to Plaintiffs, it is impossible to determine whether the assessed fees comply with 41 P.S. 9406. 44. The fact that $11,156.35 was assessed against Plaintiffs on a loan, where the principal of said loan was only $18,542.01, coupled with the fact that no effort was made by Defendant or its predecessors in interest to comply with 41 P.S. 9406 compels a finding that said fees are unreasonable under the Act. 45. 41 P.S. 9 503 provides for the award of attorneys fees for the successful prosecution of this action. WHEREFORE, based on the foregoing, Plaintiffs respectfully demand judgment in their favor in the amount of $11,156.35, together with interest thereon and costs, and reasonable attorneys fees pursuant to also to 41 P.S. 9 503, and any other remedy this Court may deem appropriate. COUNT III - OUANTUM MERUIT 46. Paragraphs 1 - 45 are incorporated herein by reference. 47. Unjust enrichment is a quasi-contractual doctrine based in equity which requires the following elements: (I) benefits conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under circumstances that it would be inequitable for defendant to retain the benefit without payment of value. Wiernik v. PHH Us. Mortgage Corp., 736 A.2d 616, 622 (Pa.Super.Ct. 1999). 48. In the present case, Defendant assessed Plaintiffs unreasonable escrow advance fees and attorneys fees, which it had no basis to do under the law. 49. It is believed and therefore averred that Defendant knew that the escrow advance fees were unnecessary and the legal fees were unreasonably inflated. 50. During the course of a refinancing in 2005, Plaintiffs satisfied the full amount demanded by Defendant under the Mortgage, but never waived their right to challenge the assessment of these fees. 51. It is believed and therefore averred that Defendant knowingly accepted payment for these fees even though it had no basis under the law to demand them. 52. Permitting Defendant to retain the value of these unreasonable fees would be repugnant to basic principles of equity. WHEREFORE, based on the foregoing, Plaintiffs respectfully demand judgment in their favor in the amount of $11,156.35, together with interest thereon and costs and any other remedy this Court may deem appropriate. Respectfully submitted, MARTSON DEARDORFF WILLIAMS & OTTO ~ J,"" Date: March '-./. ,2006 By: -tUJ f~-~ Carl C. Risch, Esquire I.D. No. 75901 Michael J. Collins, Esquire I.D. No. 200427 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff RICHARD T. SCALIA and SERENA M. SCALIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CIVIL ACTION v. : NO. : CIVIL ACTION LAW CHICAGO TITLE INSURANCE CO., Defendant VERIFICATION I, Richard T. Scalia, hereby verify that, to the best of my knowledge, information, and believe, all averments in this document are true and correct, and that I have the authority to make this verification. TIUs statement of veri ficat ion is made subject to the penalties ofl8 Pa.C.S. Section 4904 relating to unsworn falsifications to authorities, which provides that if! make knowingly false avennents, I may be subject to criminal penalties. Date: March~, 2006 /~ d-c -7 RICHARD T. SCALIA and SERENA M. SCALIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : CIVIL ACTION v. : NO. : CIVIL ACTION LAW CHICAGO TITLE INSURANCE CO., Defendant CERTIFICATE OF SERVICE I, Michael J. Collins, do hereby that the foregoing was served by Certified Mail as follows: Chicago Title Insurance Co. 6 Becker Farm Road Roseland, New Jersey 07068 1{J~i i~~' I Michael J. Collins ID. No. 200427 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff Dated: March 1'3 ,2006 - F:\FILESIDA T AFILElGenera1ICurrentl 1 0743. 1. praecipe r RICHARD T. SCALIA and SERENA M. SCALIA Plaintiffs v. CHICAGO TITLE INSURANCE CO., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06 - 1396 CIVIL TERM CIVIL ACTION LAW PRAECIPE TO SETTLE. DISCONTINUE AND END TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Kindly mark the above-referenced matter as settled, discontinued and ended with prejudice. Date: May)t-, 2006 MARTSON DEARDORFF WILLIAMS & OTTO By 1tU.J~ Michael J. Collins, Esquire MARTSON DEARDORFF WILLIAMS & OTTO LD. Number 200427 Ten East High Street Carlisle, P A 17013 (717) 243-3341 1 Attorneys for Plaintiffs ..- t CERTIFICATE OF SERVICE I, Jacqueline A. Decker, an authorized agent for MARTSON DEARDORFF WILLIAMS & OTTO, hereby certify that a copy of the foregoing Praecipe was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Ms. Christine E. Potter Vice President! Senior Claims Counsel Chicago Title Insurance Company 6 Becker Farm Road Roseland, NJ 07068 MARTSON DEARDORFF WILLIAMS & OTTO B~;..dV~/ cline A. Decker 10 ast High Street Carlisle, P A 17013 (717) 243-3341 Dated: May J ~ , 2006 o c: ?jrf e~.( /::., --- :r~c $'C !;: ~::: -_of '-, ......, -- ".:> c::::. c::::. c:r. ~ -< - ~ :-:-I ffl::n :Oghi D f:.J ~ _J -. i'~ :rJ ">c'" c5rrl 'i;! ::0 ""< N ;]l ~