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HomeMy WebLinkAbout06-2865PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 135167 DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR MASTR SPECIALIZED LOAN TRUST 2006-1 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. MELISSA MORNINGWAKE A/K/A MELISSA A. ZIMMERMAN A/IUA MELISSA ANNE MORNINGWAKE 110 EAST SIMPSON STREET MECHANICSBURG, PA 17055 Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. O(o - )P6S CUMBERLAND COUNTY Cw 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 set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 File k 135167 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 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 THIS 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. File #: 135167 Plaintiff is DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR MASTR SPECIALIZED LOAN TRUST 2006-1 3476 STATEVIEW BLVD FORT MILL, SC 29715 2. The name(s) and last known address(es) of the Defendant(s) are: MELISSA MORNINGWAKE A/K/A MELISSA A. ZIMMERMAN A/K/A MELISSA ANNE MORNINGWAKE 110 EAST SIMPSON STREET MECHANICSBURG, PA 17055 who is/are the mortgagor(s) and real owner(s) of the property hereinafter described. On 11/13/1995 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to AVSTAR MORTGAGE CORPORATION which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No: 1295, Page: 127. By Assignment of Mortgage recorded 10/27/1997 the mortgage was Assigned To CHEMICAL MORTGAGE COMPANY which Assignment is recorded in Assignment Of Mortgage Book No. 560, Page 445. PLAINTIFF is now the 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 12/01/2005 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. File k: 135167 6. The following amounts are due on the mortgage: Principal Balance $47,802.02 Interest 2,051.28 11/01/2005 through 05/17/2006 (Per Diem $10.36) Attorney's Fees 1,250.00 Cumulative Late Charges 10.15 11/13/1995 to 05/17/2006 Cost of Suit and Title Search 550.00 Subtotal $ 51,663.45 Escrow Credit 0.00 Deficit 0.00 Subtotal 0.00 TOTAL $ 51,663.45 7. The attorney's fees set forth above are in conformity with the 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 attorney'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 applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 9. 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 $ 51,663.45, together with interest from 05/17/2006 at the rate of $10.36 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. PHELAN HALLINAN & SCHMIEGG, LLP By: /s/Francis Snn`c'iiss S.. Hallinan LAWRENCE T. PHELAN, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff File #: 135167 LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the southern line of East Simpson Street, said point being by same measured in a northeasterly direction a distance of 136 feet from the eastern line of Arch Street; thence along said southern line of East Simpson Street North 74 degrees 00 minutes East a distance of 19.74 feet to a point; thence South 16 degrees 00 minutes East along the line of adjoiner between Lots Nos. 1 and 2 on the hereinafter mentioned Plan of Lots and being along and through a party wall and beyond, a distance of 103.70 feet to a point on the northern line of King Alley; thence along said northern line of King Alley South 73 degrees 43 minutes West a distance of 19.94 feet to a point; thence North 15 degrees 53 minutes West along the eastern line of lands now or late of Charles Markley a distance of 103.80 feet to a point on the southern line of East Simpson Street, the place of BEGINNING. BEING Lot No. 2 on the Final Subdivision Plan for Dean B. Farence recorded in the Cumberland County Recorder of Deeds Office in Plan Book 45, Page 135. BEING KNOWN as 110 East Simpson Street. Being the same property acquired by the Grantor pursuant to the provisions of the National Housing Act as amended (12 USC 1701 et seq.) and the Department of Housing and Urban Development Act (42 U.S.C. 3531) File k 135167 FRANCIS S. HALLINAN, ESQUIRE hereby states that he is attorney for PLAINTIFF in this matter, that Plaintiff is outside the jurisdiction of the court and or the Verification could not be obtained within the time allowed for the filing on the pleading, that he is authorized to make this verification pursuant to Pa. R. C. P. 1024 ( c ) and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by Plaintiff and are true and correct to the best of his knowledge, information and belief. Furthermore, it is counsel's intention to substitute a verification from Plaintiff as soon as it is received by counsel . The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. Sec. 4904 relating to unworn falsification to authorities. FRANCIS S. HALLINAN, ESQUIRE Attorney for Plaintiff DATE: Ci Ica U2 a t` c). f, 372 W 0 t7 r? :A U Michael S. Travis Attomey at Law ID No. 77399 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: DEUTSCHE BANK NATIONAL TRUST ) COMPANY, TRUSTEE FOR MASTR ) SPECIALIZED LOAN TRUST 2006-1 ) 3476 STATEVIEW BLVD ) FORT MILL, SC 29715 ) CIVIL DIVISION Plaintiff ) No. 2006-2865 V. MELISSA A. MORNINGWAKE ) A/K/A MELISSA A. ZIMMERMAN ) A/K/A MELISSA ANNE MORNINGWAKE) 110 EAST SIMPSON STREET ) MECHANICSBURG, PA 17055 ) Defendant ) ANSWER TO COMPLAINT IN MORTGAGE FORECLOSURE WITH COUNTERCLAIM Now comes the Defendant, Melissa A. Morningwake, by and through her attorney, Michael S. Travis, and answers the Complaint as follows: 1 - 4. Admitted. 5. Denied that the mortgage payment is in default. The defendant has tendered all required payments since the last action at 2004-1148, Cumberland County was withdrawn by praecipe on January 26, 2005. At that time, the holder of the mortgage was Chase Mortgage. 6. Denied that payments are due totaling $51,663.45. The defendant has tendered all payments due under the mortgage and note. 7. Denied that plaintiff is entitled to attorney fees. The mortgage is not in default. 8. Denied that plaintiff was entitled to issue an Act 6 or Act 91 notice. The mortgage was not in default. 9. Admitted. i s" ) WHEREFORE, defendant prays this Honorable Court to deny judgment. Counterclaim 10. The answers in Paragraphs 1-9 are incorporated as if set forth at length in full. 11. Plaintiff's last attempt to proceed in mortgage foreclosure at 2004-1148, Cumberland County was found to be without merit. 12. Plaintiff's actions in proceeding with the mortgage foreclosure action when the defendant has tendered mortgage payments is vexatious and obdurate. WHEREFORE, defendant prays this Honorable Court to award the defendant attorney's fees and costs for the defense of this Complaint. VERIFICATION I verify that the statements made in the Answer and Counterclaim are true and correct. understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. Date Melissa A. Momingwake ID No. 77399 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: ) DEUTSCHE BANK NATIONAL TRUST ) COMPANY, TRUSTEE FOR MASTR ) SPECIALIZED LOAN TRUST 2006-1 ) 3476 STATEVIEW BLVD ) FORT MILL, SC 29715 ) CIVIL DIVISION Plaintiff ) No. 2006-2865 V. MELISSA A. MORNINGWAKE ) A/K/A MELISSA A. ZIMMERMAN ) A/K/A MELISSA ANNE MORNINGWAKE) 110 EAST SIMPSON STREET ) MECHANICSBURG, PA 17055 ) Defendant ) CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served on the below persons by first class U.S. Mail, postage prepaid: Deutsche Bank National Trust care of Francis Hallinan, Esquire Phelan Hallinan & Schmieg, LLP One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 Date: ID No. 77399 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 PHELAN HALLINAN & SCHMIEG, LLP BY: SHEETAL R. SHAH-JANI, ESQUIRE Identification No.: 81760 One Penn Center at Suburban Station, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 Attorney for Plaintiff Deutsche Bank National Trust Company, Trustee for Master Specialized Loan Trust 2006-1 3476 Stateview Boulevard Fort Mill, SC 29715 Plaintiff VS. Melissa Momingwake a/k/a Melissa A. Zimmerman a/k/a Melissa Anne Momingwake 110 East Simpson Street Mechanicsburg, PA 17055 Defendants Court of Common Pleas Civil Division Cumberland County No.: 06-2865 Civil Term PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIMS Plaintiff, Deutsche Bank National Trust Company, Trustee for Master Specialized Loan Trust 2006-1, by and through its counsel, Sheetal R. Shah-Jani, Esquire hereby Preliminarily Objections to Defendants' Counterclaims and avers as follows: I. FACTUAL BACKGROUND On November 13, 1995, the mortgagor, Melissa Momingwake a/k/a Melissa A. Zimmerman, a/k/a Melissa Anne Momingwake made, executed and delivered a mortgage upon the premises describe as 110 East Simpson Street, Mechanicsburg, PA 17055 (hereinafter "Subject Premises") which Mortgage is recorded in the Office of the Recorder of Cumberland County in Mortgage Book 1295, Page 127. The mortgage is in default for failure to tender monthly mortgage payments due December 1, 2005 and each month thereafter. By the express terms of the mortgage, upon default on such payments, the entire debt is immediately collectable. The Plaintiff filed its Complaint in Mortgage Foreclosure on May 19, 2006. A true and correct copy of the Complaint in Mortgage Foreclosure is attached hereto, made part hereof and marked as Exhibit A. 4. On June 8, 2006, Defendant Melissa Momingwake, a/k/a Melissa A. Zimmerman, a/k/a Melissa Anne Momingwake was served with Plaintiff's Complaint in Mortgage Foreclosure. 5. On or about June 27, 2006, Defendant Melissa Momingwake a/k/a Melissa A. Zimmerman a/k/a Melissa Anne Momingwake filed her Answer with Counterclaim to Plaintiff s Complaint in Mortgage Foreclosure. A true and correct copy of Defendant's Answer with Counterclaim to Plaintiffs Complaint in Mortgage Foreclosure is attached hereto, made part hereof, and marked as Exhibit B. 6. Defendant's Counterclaim allege that Plaintiff s instant action is brought in bad faith as she has allegedly tendered all payments and Plaintiffs last attempt to foreclosure was found to be without merit. II. FAILURE OF A PLEADING TO CONFIRM TO RULE PURSUANT TO PA. R.C.P. 1028 (a) (2). Pa.R.C.P. 1028(a)(4) and Pa. R.C.P. 1148 Plaintiff incorporates herein by reference paragraphs one (1) through five (5) of Plaintiffs Preliminary Objections as if set forth herein at length. Pursuant to Pa.R.C.P. 1028 (a) (2), a preliminary objection may be filed by any party to a pleading for the failure of a pleading to conform to the law or rule of court. 9. Pa.R.C.P. 1028(a)(4) allows a party to preliminary objections to a pleading for legal insufficiency of that pleading. 10. Defendant's Counterclaims are all inappropriate and should be dismissed under Pennsylvania Law. 11. All of Defendant's Counterclaims arise from occurrences which happened in or after November 13, 1995, the origination of mortgage date, and/or after January 2005, the date of Defendant's initial reinstatement of the mortgage default based on Plaintiff s prior foreclosure action. 12. None of the Defendant's Counterclaim are incident to the creation of the mortgage obligation which is the subject of this mortgage foreclosure action. 13. Pa. R.C.P. 1148 provides that a Defendant may only plead a Counterclaim which "arises from the same transaction or occurrence" from which the Plaintiff's cause of action arose. The Pennsylvania Superior Court has repeatedly held that a counterclaims in a mortgage foreclosure action, which does not pertain to the creation of the Mortgage, must be dismissed. Cunningham v. McWilliams, 714 A.2d 1054; Chrysler First Business Credit Coro. v. Gourniak, 411 Pa. Super 259, 601 A.2d 338 (1992); Overly v. Kass, 382 Super. Ct. 108, 554 A.2d 970 (1989); Mellon Bank, N.A. v. Joseph, 267 Pa. Super. 307, 406 A.2d 1055 (1979). The Superior Court has even held that this Rule must be interpreted narrowly and a Counterclaims based on facts, which occurred after the default is certainly not based on facts pertaining to the creation of the Mortgage and must be dismissed. Goumiak, 601 A.2d 341-2. 14. Since Defendant's Counterclaims pertain to the alleged tender of payments, Defendant's Counterclaims do not pertain to the creation of the Mortgage and therefore should be stricken. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an Order sustaining Plaintiffs Preliminary Objections to Defendant's Counterclaim and strike Defendant's Counterclaim with prejudice. Respectfully submitted, PHELAN HALLINAN & SCHMIEG, LLP Date: lJ BY: eetal R. Shah-Jani, Es Attorney for Plaintiff xatwT 8 PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 135167 DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR MASTR SPECIALIZED LOAN TRUST 2006-1 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. MELISSA MORNINGWAKE A/K/A MELISSA A. ZIMMERMAN A/K/A MELISSA ANNE MORNINGWAKE 110 EAST SIMPSON STREET MECHANICSBURG, PA 17055 Defendant (? N a O o` -r7 . (T t Farr. x. zT ATTORNEY FOR PLAMIFF '` -rno;:; cD o zC) COURT OF COMMON IAS E5 Ern CIVIL DIVISION w TERM NO. Vlo -?aD?s ?IUrC? CUMBERLAND COUNTY CIVIL ACTION - LAW M4 F' 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 set forth against you. You are warned that if you fail to do so the case may proceed without you and ajudgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 7 (800)990-9108 A We hereby Ie,,r H the wltftitt to be a of our invoicect copy File #: 135167 PHELAN HALLINAN & SCHMIEG, LLP LAWRENCE T. PHELAN, ESQ., Id. No. 32227 FRANCIS S. HALLINAN, ESQ., Id. No. 62695 ONE PENN CENTER PLAZA, SUITE 1400 PHILADELPHIA, PA 19103 (215) 563-7000 135167 DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR MASTR SPECIALIZED LOAN TRUST 2006-1 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. MELISSA MORNINGWAKE A/K/A MELISSA A. ZIMMERMAN A/K/A MELISSA ANNE MORNINGWAKE 110 EAST SIMPSON STREET MECHANICSBURG, PA 17055 Defendant ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS CIVIL DIVISION TERM NO. 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 set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may he entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (800)990-9108 File#, 135167 IF THIS IS THE FIRST NOTICE THAT YOU HAVE RECEIVED FROM THIS OFFICE, BE ADVISED THAT: PURSUANT TO THE FAIR DEBT COLLECTION PRACTICES ACT, 15 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 THIS 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. File #: 135167 I . Plaintiff is DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR MASTR SPECIALIZED LOAN TRUST 2006-1 3476 STATEVIEW BLVD FORT MILL, SC 29715 2. The name(s) and last known address(es) of the Defendant(s) are: MELISSA MORNINGWAKE A/K/A MELISSA A. ZIMMERMAN A/K/A MELISSA ANNE MORNINGWAKE 110 EAST SIMPSON STREET MECHANICSBURG, PA 17055 who is/are the mortgagor(s) and real owner(s) of the property hereinafter described. 3. On 11/13/1995 mortgagor(s) made, executed and delivered a mortgage upon the premises hereinafter described to AVSTAR MORTGAGE CORPORATION which mortgage is recorded in the Office of the Recorder of CUMBERLAND County, in Mortgage Book No: 1295, Page: 127. By Assignment of Mortgage recorded 10/27/1997 the mortgage was Assigned To CHEMICAL MORTGAGE COMPANY which Assignment is recorded in Assignment Of Mortgage Book No. 560, Page 445. PLAINTIFF is now the 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 12/01/2005 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. File N 135167 6. The following amounts are due on the mortgage: Principal Balance $47,802.02 Interest 2,051.28 11/01/2005 through 05/17/2006 (Per Diem $10.36) Attorney's Fees 1,250.00 Cumulative Late Charges 10.15 11/13/1995 to 05/17/2006 Cost of Suit and Title Search 550.00 Subtotal $ 51,663.45 Escrow Credit 0.00 Deficit 0.00 Subtotal 0.00 TOTAL $ 51,663.45 The attorney's fees set forth above are in conformity with the 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 attorney'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 applicable, have been sent to the Defendant(s) on the date(s) set forth thereon, and the temporary stay as provided by said notice has terminated because Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency, or has/have been denied assistance by the Pennsylvania Housing Finance Agency. 9. 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 $ 51,663.45, together with interest from 05/17/2006 at the rate of $10.36 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. PHELAN HALLINAN & SCHMIEG, LLP Cam.,,. /6 By: /s/Francis S. Hallinan LAWRENCE T. PHELAN, ESQUIRE FRANCIS S. HALLINAN, ESQUIRE Attorneys for Plaintiff File M: 135167 LEGAL DESCRIPTION ALL THAT CERTAIN piece or parcel of land situate in the Borough of Mechanicsburg, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point on the southern line of East Simpson Street, said point being by same measured in a northeasterly direction a distance of 136 feet from the eastern line of Arch Street; thence along said southern line of East Simpson Street North 74 degrees 00 minutes East a distance of 19.74 feet to a point; thence South 16 degrees 00 minutes East along the line of adjoiner between Lots Nos. 1 and 2 on the hereinafter mentioned Plan of Lots and being along and through a party wall and beyond, a distance of 103.70 feet to a point on the northern line of King Alley; thence along said northern line of King Alley South 73 degrees 43 minutes West a distance of 19.94 feet to a point; thence North 15 degrees 53 minutes West along the eastern line of lands now or late of Charles Markley a distance of 103.80 feet to a point on the southern line of East Simpson Street, the place of BEGINNING. BEING Lot No. 2 on the Final Subdivision Plan for Dean B. Farence recorded in the Cumberland County Recorder of Deeds Office in Plan Book 45, Page 135. BEING KNOWN as 110 East Simpson Street. Being the same property acquired by the Grantor pursuant to the provisions of the National Housing Act as amended (12 USC 1701 et seq.) and the Department of Housing and Urban Development Act (42 U.S.C. 3531) File #: 135167 FRANCIS S. HALLINAN, ESQUIRE hereby states that he is attorney for PLAINTIFF in this matter, that Plaintiff is outside the jurisdiction of the court and or the Verification could not be obtained within the time allowed for the filing on the pleading, that he is authorized to make this verification pursuant to Pa. R. C. P. 1024 ( c ) and that the statements made in the foregoing Civil Action in Mortgage Foreclosure are based upon information supplied by Plaintiff and are true and correct to the best of his knowledge, information and belief. Furthermore, it is counsel's intention to substitute a verification from Plaintiff as soon as it is received by counsel . The undersigned understands that this statement is made subject to the penalties of 18 Pa. C.S. See. 4904 relating to unswom falsification to authorities. / ,kol, FRANCIS S. HALLINAN, ESQUIRE Attorney for Plaintiff -4 Jo cp DATE: EXHIBIT B I MICHAEL S. TRAVIS ATTORNEY AT LAw 3904 TRINDLE ROAD CAMP HILL, PA 17011 TELEPHONE (717) 731-9502 FAX (717) 731-9511 July 3, 2006 Francis Hallinan, Esquire Phelan Hallinan & Schmieg, LLP One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard, Suite 1400 Philadelphia, PA 19103-1814 Re: Deutsche Bank v. Melissa Morningwake, No. 2006-2865, Mortgage Foreclosure Returned Payment Dear Mr. Hallinan: My office filed an answer to the above complaint on June 27. The lender returned the debtor's payment of $600.00 (check no 497). It is made payable to ACS. I am holding it in my file pending resolution. Please contact me should you have any questions or concerns. MST/hm PC: Defendant Attorney for lletendant Michael S. Travis Attomey at Law ID No. 77399 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 1356 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR MASTR SPECIALIZED LOAN TRUST 2006-1 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. CIVIL DIVISION No. 2006-2865 MELISSA A. MORNINGWAKE ) A/K/A MELISSA A. ZIMMERMAN ) A/K/A MELISSA ANNE MORNINGWAKE) 110 EAST SIMPSON STREET ) MECHANICSBURG, PA 17055 ) Defendant ) c? rv t ANSWER TO COMPLAINT IN MORTGAGE FORECLOSURE WITH COUNTERCLAIM Now comes the Defendant, Melissa A. Momingwake, by and through her attorney, Michael S. Travis, and answers the Complaint as follows: a 1 - 4. Admitted. 5. Denied that the mortgage payment is in default. The defendant has tendered all required payments since the last action at 2004-1148, Cumberland County was withdrawn by praecipe on January 26, 2005. At that time, the holder of the mortgage was Chase Mortgage. 6. Denied that payments are due totaling $51,663.45. The defendant has tendered all payments due under the mortgage and note. 7. Denied that plaintiff is entitled to attorney fees. The mortgage is not in default. 8. Denied that plaintiff was entitled to issue an Act 6 or Act 91 notice. The mortgage was not in default. 9. Admitted. WHEREFORE, defendant prays this Honorable Court to deny judgment. Counterclaim 10. The answers in Paragraphs 1-9 are incorporated as if set forth at length in full. 1 L Plaintiff's last attempt to proceed in mortgage foreclosure at 2004-1148, Cumberland County was found to be without merit. 12. Plaintiff's actions in proceeding with the mortgage foreclosure action when the defendant has tendered mortgage payments is vexatious and obdurate. WHEREFORE, defendant prays this Honorable Court to award the defendant attorney's fees and costs for the defense of this Complaint. VERIFICATION I verify that the statements made in the Answer and Counterclaim are true and correct. understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. Date Melissa A. Morningwake 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 Attorney for Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: ) DEUTSCHE BANK NATIONAL TRUST ) COMPANY, TRUSTEE FOR MASTR ) SPECIALIZED LOAN TRUST 2006-1 ) 3476 STATEVIEW BLVD ) FORT MILL, SC 29715 ) CIVIL DIVISION Plaintiff ) No. 2006-2865 V. MELISSA A. MORNINGWAKE A/K/A MELISSA A. ZIMMERMAN A/K/A MELISSA ANNE MORNINGW 110 EAST SIMPSON STREET MECHANICSBURG, PA 17055 Defendant CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served on the below persons by first class U.S. Mail, postage prepaid: Deutsche Bank National Trust care of Francis Hallinan, Esquire Phelan Hallinan & Schmieg, LLP One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 Date: ID No. 77399 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 VERIFICATION Sheetal R. Shah-Jani, Esquire, hereby states that she is the attorney for Plaintiff in this action, that she is authorized to make this verification, and that the statements made in the foregoing Plaintiffs Preliminary Objections to Defendant's Counterclaims are true and correct to the best of her knowledge, information, and belief. The undersigned understands that this statement herein is made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities. Date ql&ka? ? Sheetal R. Shah-Jani, sq 're Attorney for Plaintiff r' '"1 ri ? _ "5. -f5 ?',? z <t : 'i : -- :{ PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court Deutsche Bank National Trust Company, Trustee Court of Common Pleas for Master Specialized Loan Trust 2006-1 Civil Division 3476 Stateview Boulevard Fort Mill, SC 29715 Cumberland County Plaintiff No.: 06-2865 Civil Term VS. Melissa Momingwake Wa Melissa A. Zimmerman a/k/a Melissa Anne Momingwake 110 East Simpson Street Mechanicsburg, PA 17055 Defendants No. 2865 Civil Term 2006 State matter to be argued (i.e., plaintiff s motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff s Preliminary Objections to Defendant's Counterclaim 2. Identify counsel who will argue case: (a) for Defendants: Sheetal R. Shah-Jani, Esquire Address: Phelan Hallinan & Schmieg, LLP One Penn Center at Suburban Station 1617 J.F.K. Blvd. - Suite 1400 Philadelphia, PA 19103-1814 (b) for Plaintiff: Michael S. Travis, Esquire Address: 3904 Trindle Road Camp Hill, PA 17011 I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: September 6, 2006 Date: July 14, 2006 Sheetal R. Shah-Jani, Es re Attorney for Plaintiff ?„ --? ._. _ ,. , ;-- ,.?- ?.i _,,; ?. U ?. PHELAN HALLINAN & SCHMIEG, LLP BY: SHEETAL R. SHAH-JANI, ESQUIRE Identification No.: 81760 One Penn Center at Suburban Station, Suite 1400 Philadelphia, PA 19103-1814 (215) 563-7000 Attorney for Plaintiff Deutsche Bank National Trust Company, Trustee for Master Specialized Loan Trust 2006-1 3476 Stateview Boulevard Fort Mill, SC 29715 Plaintiff VS. Melissa Momingwake a/k/a Melissa A. Zimmerman a/k/a Melissa Anne Momingwake 110 East Simpson Street Mechanicsburg, PA 17055 Defendants Court of Common Pleas Civil Division Cumberland County No.: 06-2865 Civil Term CERTIFICATION OF SERVICE I certify that a true and correct copy of Plaintiff s Preliminary Objections to Defendant's Counterclaims, duplicate Praecipe for Listing Case for Argument, and Certificate of Service was sent via regular mail to the persons listed below on the date indicated: Michael S. Travis, Esquire 3904 Trindle Road Camp Hill, PA 17011 Date: Sheetal R. Shah-Jani, sq ire Attorney for Plaintiff r =' ? } t^? _ : l `' } -ri C. ?i - i9 , r_. ?.? .? ((?? Deutsche Bank National Trust : IN THE COURT OF COMMON PLEAS OF Company, Trustee for Mastr, : CUMBERLAND COUNTY, PENNSYLVANIA Specialized Loan Trust 2006-1 3476 State View Blvd Fort Mill, SC 29715 Plaintiff : NO. 06-2865 Civil Term VS. Melissa A. Morningwake, a/k/a Melissa A. Zimmerman a/k/a Melissa Anne Morningwake, . 110 East Simpson Street Mechanicsburg, PA 17055 Defendant ENTRY OF APPEARANCE AS LOCAL COUNSEL Dear Sir: I hereby enter my appearance as local counsel, in conjunction with the Law Offices of Phelan Hallinan Schmieg, for the limited purpose of representing the Plaintiff at Argument Court to be held on Wednesday, September 6, 2006. /-N Date: August 7, 2006 Dale F. Shughart, Supreme Court I.D. 10 West High Street Carlisle, PA 17013 (717) 241-4311 Cc: Sheetal R. Shah-Jani, Esquire, Phelan Hallinan Schmieg Michael S. Travis, Esquire ?, ? a ??? cn??', t -a ?? -v ?? S ?C N ? -G J Michael S. Travis Attorney at Law ID No. 77399 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: ) DEUTSCHE BANK NATIONAL TRUST ) COMPANY, TRUSTEE FOR MASTR ) SPECIALIZED LOAN TRUST 2006-1 ) 3476 STATEVIEW BLVD ) FORT MILL, SC 29715 ) CIVIL DIVISION Plaintiff ) No. 2006-2865 V. MELISSA A. MORNINGWAKE A/K/A MELISSA A. ZIMMERMAN A/K/A MELISSA ANNE MORNINGW 110 EAST SIMPSON STREET MECHANICSBURG, PA 17055 Defendant AMENDED ANSWER TO COMPLAINT IN MORTGAGE FORECLOSURE Now comes the Defendant, Melissa A. Morningwake, by and through her attorney, Michael S. Travis, and answers the Complaint as follows: 1 - 4. Admitted. 5. Denied that the mortgage payment is in default. The Defendant has tendered all required payments since the last action at 2004-1148, Cumberland County was withdrawn by praecipe on January 26, 2005. At that time, the holder of the mortgage was Chase Mortgage. 6. Denied that payments are due totaling $51,663.45. The Defendant has tendered all payments due under the mortgage and note. By way of further answer, Plaintiff s last attempt to proceed in mortgage foreclosure at 20041148, Cumberland County was found to be without merit. Plaintiffs actions in proceeding with the mortgage foreclosure action when the Defendant has tendered mortgage payments is vexatious and obdurate. Denied that Plaintiff is entitled to attorney fees. The mortgage is not in default. 8. Denied that Plaintiff was entitled to issue an Act 6 or Act 91 notice. The mortgage was not in default. 9. Admitted. WHEREFORE, Defendant prays this Honorable Court to deny judgment. ID No. 77399 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 Attorney for Defendant VERIFICATION I verify that the statements made in the Amended Answer are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unworn falsification to authorities. Date AA, Melissa A. omingwake IN RE: DEUTSCHE BANK NATIONAL TRUST COMPANY, TRUSTEE FOR MASTR SPECIALIZED LOAN TRUST 2006-1 3476 STATEVIEW BLVD FORT MILL, SC 29715 Plaintiff V. MELISSA A. MORNINGWAKE A/K/A MELISSA A. ZIMMERMAN A/K/A MELISSA ANNE MORNINGW. 110 EAST SIMPSON STREET MECHANICSBURG, PA 17055 Defendant CIVIL DIVISION No. 2006-2865 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served on the below persons by first class U.S. Mail, postage prepaid: Deutsche Bank National Trust care of Sheetal R. Shah - Jani, Esquire Phelan Hallinan & Schmieg, LLP One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Suite 1400 Philadelphia, PA 19103-1814 Date: 616060 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 3904 Trindle Road Camp Hill, PA 17011 717-731-9502 r?? !?: ]7? ?t a w ? SHERIFF'S RETURN - REGULAR CASE NO: 2006-02865 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND DEUTSCHE BANK NATIONAL TRUST VS MORNINGWAKE MELISSA ET AL MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - MORT FORE was served upon MnV'NTTT\T(_TA7AVW MF.T,T.q.4A AKA MFT TSA A 9TMMERMAN AKA MELISSA ANNE the DEFENDANT , at 2109:00 HOURS, on the 8th day of June , 2006 at 110 EAST SIMPSON STREET MECHANICSBURG, PA 17055 by handing to DOUG HICKS, BOYFRIEND a true and attested copy of COMPLAINT - MORT FORE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 ? /' Service 17.60 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 45.60 / 06/12/2006 71,116c, PHELAN HALLINAN SCHMIEG Sworn and Subscibed to By: ?? - before me this day Deputy Sheriff~ of A.D. 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, Trustee For Mastr Specialized Loan Trust 2006-1 3476 Stateview Boulevard Fort Mill, SC 29715 Plaintiff vs. Melissa Morningwake A/K/A Melissa A. Zimmerman A/K/A Melissa Anne Morningwake 110 East Simpson Street Mechanicsburg, PA 17055 Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division Cumberland County No.: 06-2865-Civil Term PRAECIPE TO WITHDRAW COMPLAINT TO THE PROTHONOTARY: Please withdraw the Complaint and mark the case Discontinued and Ended without prejudice in the above referenced case. '0/ r Date: J3( ( 0- Francis S. Hallinan, Esquire Attorney for Plaintiff 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, Trustee For Mastr Specialized Loan Trust 2006-1 3476 Stateview Boulevard Fort Mill, SC 29715 Plaintiff VS. Melissa Morningwake A/K/A Melissa A. Zimmerman A/K/A Melissa Anne Morningwake 110 East Simpson Street Mechanicsburg, PA 17055 Defendant ATTORNEY FOR PLAINTIFF Court of Common Pleas Civil Division Cumberland County No.: 06-2865-Civil Term CERTIFICATION OF SERVICE I hereby certify a true and correct copy of the foregoing Plaintiffs Praecipe to Withdraw Complaint was served by regular mail on the following parties on the date listed below: Michael S. Travis, Esquire 3904 Trindle Road Camp Hill, PA 7011 DATE: rancis S. Hallinan, Esquire Attorney for Plaintiff T VIA 1 L.7 +