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HomeMy WebLinkAbout06-6117,i DOUGLAS C. LOVELACE, JR., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 : IN THE COURT OF COMMON PLEAS IDA L. CASTELLNO : CUMBERLAND COUNTY, Plaintiff : PENNSYLVANIA V. CIVIL ACTION - IN LAW VICTOR M. RIVERA, JR. Defendant : NO: 04- G 11 7 CIVIL, TERM 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 OR CANNOT AFFORD ONE, TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 (717) 249-3166 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. SI USTED QUIERE DEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGUIENTES, USTED TIENE VIENTE (20) DIAS DE PLAZO AL PARTIR DE LA FECHA DE LA DEMANDA Y LA NOTIFICACION. USTED DEBE PRESENTAR UNA APARIENCIA ESCRITA O EN PERSONA O POR ABOGADO Y ARCHIVAR EN LA CORTE EN FORMA ESCRITA SUS DEFENSES O SUS OBJECTIONS A LAS DEMANDAS EN CONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE DEFIENDE, LA CORTE TOMARA MEDIDAS Y PUEDE ENTRAR UNA ORDEN CONTRA USTED SIN PREVIO AVISO O NOTIFICACION Y POR CUALQUIER QUEJA O ALIVO QUE ES PEDIDO EN LA PETICION DE DEMANDA. USTED PUEDE PERDER DINERO O SUS PROPIEDADAS O OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA UN PERSONA O LLAME POR TELEPHONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 (717) 249-3166 DOUGLAS C. LOVELACE, JR., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 2 DOUGLAS C. LOVELACE, JR-, Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 : IN THE COURT OF COMMON PLEAS IDA L. CASTELLANO CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CIVIL ACTION - IN LAW VICTOR M. RIVERA, JR. Defendant NO: 6 b - CIVIL TERM COMPLAINT AND NOW comes IDA L. CASTELLANO, by and through her attorney, Douglas C. Lovelace, Jr., Esquire, and respectfully represents as follows in support of this complaint: Parties 1. The Plaintiff, IDA L. CASTELLANO, is an adult individual whose principal residence is 9953 Alicia Street, Philadelphia, Pennsylvania 19115. 2. The Defendant, VICTOR M. RIVERA, JR., is an adult individual whose principal residence is 525 Spring Garden Street, Carlisle, Pennsylvania 17013. Factual Allegations 3. During their marriage, Plaintiff and Defendant jointly owned the family residence located at 9953 Alicia Street, Philadelphia, Pennsylvania. 4. In October 2001, Defendant asked Plaintiff if she would agree to Defendant taking out a loan for twenty-five thousand dollars and giving a second mortgage on the said residence to secure the note. 5. Defendant intended to and did use the proceeds of the loan for his personal purposes. 6. On or about November 2, 2001, Plaintiff agreed to and did co-sign the loan for the Defendant. A true and correct copy of the loan agreement is attached hereto as Exhibit A and incorporated herein by reference. 7. Defendant agreed to be solely responsible for repaying the loan secured by the second mortgage on the said residence. 8. On or about August 17, 2003 Plaintiff and Defendant were divorced. 9. Plaintiff's and Defendant's divorce resulted from Defendant's marital infidelity. 10. As part of Plaintiff's and Defendant's divorce agreement, Plaintiff retained sole possession of the residence located at 9953 Alicia Street, Philadelphia, Pennsylvania. 11. On August 6, 2004, Defendant signed a notarized promise to remain responsible for making the payments of two hundred eighty-three dollars and fifty cents ($283.50) on the said loan until it is paid-off. A copy of the notarized document is attached hereto as Exhibit B and incorporated herein by reference. 12. In the same writing executed by Defendant on August 6, 2004, Defendant promised to acquire a new residence and refinance the loan in order to remove the second mortgage on the residence located at 9953 Alicia Street, Philadelphia. 13. Subsequent to receiving the divorce decree, Defendant married the woman he had been seeing during his marriage to Plaintiff. 14. Subsequent to his divorce from Plaintiff, Defendant bought the residence located at 525 Spring Garden Street, Carlisle, Pennsylvania, where he resides with his new wife. 15. Defendant did not refinance the loan he secured by a second mortgage on the residence located at 9953 Alicia Street, Philadelphia. 2 16. On or about October 5, 2005, Plaintiff was forced to refinance the loan secured by the first mortgage on the residence located at 9953 Alicia Street, Philadelphia, in order to lower monthly payments to make them affordable. 17. Plaintiff was informed by the loan broker, Brian Howell of Priority Mortgage Services, that she could not refinance the loan secured by the first mortgage alone, and that she would have to refinance the loan secured by the second mortgage as well. 18. Plaintiff informed Defendant of the requirement to refinance the Defendant's loan secured by the second mortgage on the residence located at 9953 Alicia Street, Philadelphia and Defendant replied, "Do what you have to do" or words to that effect. 19. Plaintiff refinanced the Defendant's loan in order to clear the second mortgage so that she could then refinance the loan that was secured by the first mortgage on the residence located at 9953 Alicia Street, Philadelphia. 20. After learning that plaintiff had paid-off the loan that was secured by the second mortgage, Defendant ceased making loan payments. 21. The note evidencing the Defendant's loan that was secured by the second mortgage was, by its explicit terms, assignable. 22. The terms of the note evidencing the Defendant's loan that was secured by the second mortgage provides that, in the event of default, the lender may declare due immediately the entire unpaid principal balance, all accrued unpaid interest, and any other applicable fees and costs to include a three percent increase in the interest rate applied to the unpaid balance. 23. The terms of the note evidencing the Defendant's loan that was secured by the second mortgage provides for recovery of attorney fees up to twenty-five percent (25%) of the outstanding loan balance. 24. The terms of the note evidencing the Defendant's loan that was secured by the second mortgage provides the aforementioned rights to the original lender, assigns, and successors. 25. Plaintiff is successor in interest to the original lender for the said loan. 26. On or about February 9, 2006, Mr. Brian Howell of Priority Mortgage Services notified Defendant in writing that Defendant should make all future payments to Plaintiff. A copy of said writing is attached hereto as Exhibit C and incorporated herein by reference. 27. Plaintiff contacted Defendant and asked that he make the loan payments to her and Defendant replied, "I never agreed to that" or words to that effect. 28. In denying he had agreed to Plaintiffs pay-off of his loan and refusing to repay Plaintiff, Defendant intended to receive the benefit of the amount of the unpaid balance remaining, plus interest. 29. Once Plaintiff paid-off Defendant's loan that was secured by the second mortgage on the residence at 9953 Alicia Street, Defendant made no further payments to anyone on the loan. 30. Defendant has not refinanced the loan he took out secured by the second mortgage on the residence located at 9953 Alicia Street, Philadelphia. 31. The defendant received the full benefit of the loan he took out using the second mortgage on the residence located at 9953 Alicia Street, Philadelphia as security. 32. As of the date Plaintiff paid-off the loan, there remained an unpaid balance of twenty thousand, seven hundred, twenty-four dollars and fifty-five cents ($20,724.55). 33. On or about June 28, 2006, Plaintiff notified Defendant that she holds him in default on the loan he took out using the second mortgage on the residence located at 9953 Alicia Street, Philadelphia as security. 4 Count I Breach of Contract 34. Plaintiff incorporates herein by reference the averments contained in foregoing paragraphs 1 through 33, inclusive, as fully as though the same were set forth herein at length. 35. By terminating his payments on the loan originally secured by a second mortgage on the residence located at 9953 Alicia Street, Philadelphia, the Defendant breached the express terms of the loan agreement. 36. By terminating his payments on the loan originally secured by a second mortgage on the residence located at 9953 Alicia Street, Philadelphia and by not refinancing the loan as he agreed in writing on August 6, 2004, the Defendant breached the express terms of that agreement. 37. Due to Defendant's breach of the agreements he had with Plaintiff, Plaintiff suffered a loss of $20,724.55 plus accrued interest at the rate of thirteen point sixty-five percent (13.65%). WHEREFORE, Plaintiff respectfully requests this honorable Court to enter judgment in her favor and against Defendant in an amount of $20,724.55 plus accrued interest at the rate of thirteen point sixty-five percent (13.65%), reasonable attorney fees, and any other costs and interest that may be provided by law, an amount that does not exceed the jurisdictional amount for compulsory arbitration in accordance with local rule. Count 11 Uniust Enrichment In the event it is determined that no written or oral agreement existed in fact or law between Plaintiff and Defendant as alleged in Count I, Plaintiff alleges as follows: 38. Plaintiff incorporates herein by reference the averments contained in foregoing paragraphs 1 through 37, inclusive, as fully as though the same were set forth herein at length. 5 39. By terminating repayment of the said loan, Defendant improperly received a benefit of $20,724.55 plus interest. 40. Defendant knew he would realize the benefit of the amount of the aforementioned unpaid balance when he ceased repayment of the loan. 41. Defendant has refused to pay Plaintiff the $20,724.55 Defendant owes Plaintiff. 42. Acceptance and retention of the benefit of the $20,724.55 Defendant owes Plaintiff, under the circumstances described in the foregoing paragraphs, would be inequitable unless Defendant pays Plaintiff the value of the benefit. WHEREFORE, Plaintiff respectfully requests this honorable Court to enter judgment in its favor and against Defendant in the amount of twenty-thousand, seven-hundred, twenty-four dollars and fifty-five cents ($20,724.55) plus accrued interest at the rate of thirteen point sixty- five percent (13.65%), reasonable attorney fees, and any other costs and interest that may be provided by law, an amount that does not exceed the jurisdictional amount for compulsory arbitration in accordance with local rule. Dated: D6s, ?Q, aC'1: Respectfully submitted, 4ip r. 6i0- Vol DOUGLAS C. LOVELACE, JR., Esquire Attorney for the Plaintiff Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 6 06/07/2006 10:29 267-256-3535 EXHIBIRTSA CLAIMS iI?INI?pE?NINl?P? StnvTRUff PROMISSORY NOTE References in the shaded area are for Lender's only a"•" nd do not limit the applicabli Any Itern above coming "" has been omitted due to Borrower: IC L R M RI A JR Lander: 9983 ALICIA STREET 1 PHILADELPHIA, PA 19115 :g PAGE 02/06 7fiI?0iIFIN 1 10, ?iAV?t.?'A,4 AAAIK ? TAttST,leb W7tht= REC0MMW 1 AS r FAOWM INMAG ' EN'S PAfRiES W?tE0l . to any particular loan or item. of this Sun7ru9t Bmank 1001 Semes Avenue Richmond. VA 23224 Principal Arriottrtt: $24,00O.00 interest Rate: 11.550% Date of Note: November 2, 2001 PROMISE TO PAY. I ("Borrower'") jointly and so ally promise to pay to SunTrust Sank 1"Lender"), or order, In lawful money of the United States of America, the principal amount of 7w gj?y-four Thousand & 001100 Dollars f574,000.06). together with irrterant at the ratn' bf 11.650% par nn u rn on the unpaid principal halo! from November 7, 2001, until paid in full PAYMENT. I will pay this loan in 180 payments of 6283.50 each payment. My first payrrrent is due December 17, 2001, and at subsequent payments are due an the same day of each month after that. My final payment will be due an November 17, 2016, and will be for all principal, accrued Interest, and elf other applicable fees, costs and charges, if any, not yet paid. Payments include principal and Interest, Unless otherwise required by applicable low, payments (whether regular payments or prepayrrneerta) will be applied first to arty loan fees (such as late fees or bad cheek feed. second to credit Insurance premkrr", third to accrued unpaid interest, and thereafter to reduce my outstanding principal balance, or in any other order Lender wlshaa. If I make a payment which Is late, the fats fee will be due and payable ie addition to my regular payment. Since Interest accrues daily, if I am comisterrily early in making my payments. my last payment will be less than scheduled. If I am consistently late, my lox% payment will be more than scheduled. Payments made by check, including cmhier'n, taker's or eerMad checks, do not discharge my debt to Lender until final payment of the check. Interest on this Note is computed on a 3651365 simple Interest basis; that is, by applyleg the ratio of the annual interest rate over the number of days in a year (206 during leap years), multipned by the outstanding principal balance. multi and by the actual member of days the principal balance Is outstanding, i will poy lender at Lander's addres;r shown above or at such other place as Lender may designate in writing. PREPAYMENT. i may pay without penalty all or a portion of the amount owed earlier than It is due. Early payments will not, unless agreed to by Lender in writing, relieve me of my obligation to continue to make payments under the payment schedule, Rather, early payments will reduce the principal balanca due and may result in my making. fewer payments. i agree not to send Lender payments marked "paid In full", "wthout recourse", or similar language. If I send such a payment, Lander may accept it without losing any of Lender's rights under thin Note, and I will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed Amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other condiilons or limitations or as full satisfaction of a disputed amount must be mailed or delivered to. SunTrust Bank, P.O. Box 85673 Richmond, VA 23285-5673. LATE CHARGE. If a payment is 10 days or more late. i will be charged 5.400% of the unpaid portion of the regularly scheduled payment, INTEREST AFTER WFAULT. Upon default, including failure to pay upon final maturity, Lender, at its option, may, if permitted under applicable law, increase the interest rate on this Note 3,000 percantage points. The interest rate will not exceed the maximum rote permlttoti by applicable law. DEFAULT, t will be In default under thLe Note if any of the following happen: payment Default. I fail to make any payment when duo under this Note. Break Other Promises. I break any promise made to Lender or'Fail to perform promptly at the time and strictly in the manor provided In This Note or in any agreement related to this Note, or in any other agreement or loin I have with Lender. Default in Favor of Third Parties. i or any Grantor defeults under any loan, oxtension'of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of my property or my ability to repay this Note or perform my obligations under this Note or any of the rotated documents. False Statements. Any representation or statement made or fumishad to Lender by me or on my behalf under this Note or the related documents is fame or misleading In any material respect, either now or at the time rrfade or furnished. Death or insolvency. Any Borrower dies or becomes insolvent; a receiver is appointed for any part of my property; I make an assignment for the benefit of creditors: or any proceeding is commenced either by me or against me under eny bankruptcy or insolvency laws, Taking of the Property. Any creditor or governmental agency tries to take any of the property or any other of my property in which Lander has a lien. This includes taking of, garnishing of or levying on my accounts with Lender. However, if i dispute in good faith whether the claim on which the taking of the property is based Is valid or reasonable, and if I give Lender written notice of the claim and furnish Lender with monies or a surety bond satisfactory to Lender to satisfy the claim, than this default provision will not apply. Dofecdve Collateralution. This Note or any of the related documents ceases to be in full force and effect fincluding failure of any collateral document to create a valid and perfected security interest or fien) at any time and for any reason, collateral Damage or Loss. Any collateral securing this Note is lost, stolen, substantially damaged or destroyed and the loss, theft, substantial damage or destruction is not covered by insurance. Events Affecting Guarantor. Any of the pracacift events occurs with respect to any guarantor, endorser, surety, or accommodation party of any of the indebtedness or any guarantor, endorser, surety, or accommodation party dies or becomes Incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the Indebtodneas evidenced by this Note. LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid Drincipal balance on this Note and all accrued unpaid Interest, together EXHIBIT 06/07/2006 10:29 267-256-3 Lean NO: 04300004430OS2993 PROMISSORY NOTE (Continued) with all other applicable fees, costs and charges, if any, immediately due and payable, and then I will pay that amount. Page 2 ATTORNEYS' FEES; EXPENSES. Subject to any limits under applicable law, upon default, I agree to pay Lender's attorneys' fees equal to 25.000% of the principal balance due on the loallpd all of Lender's other collection expenses, whether or not there is a lawsuit, including legal expenses for bankruptcy proceedings, j. JURY WAIVER. Lender and I hereby wafvo the rittit to any jury trial in any action, proceeding, or counterclaim brought by either Lender or me against the other, GOVERNING LAW. This Note will be govorndIty and iterpreted In accordance with federal law and the laws of the Commonwealth of Vitglnia. This Note has been accepted by bender in the Commonwealth of Virginia. CHOICE OF VENUE. if there bR a lawsuit, I sgrel)upon Lender's request to submit to the jurisdiction of the applicable courts for the City of Richmond, Commonwealth of Virginia, DISHONORED IT>;Ni FEE..i will pay a fee to Londe f $15.00 if I make s payment on my loan and the check or preauthorized charge with which I pay is later dishonored. RIGHT OF SETOFF, To the extent permitted by applicable law, Lender reserves a right of setoff in all my accounts with Lender lwhather checking, savings, or some other account), Thiscludes all accounts I hold jointly with someone else and all accounts 1 may open in the future. However, this does not Include any IRA of Kood accounts, or any trust accounts for which setoff would be prohibited by law. I authorize Lender, to the extent permitted by applicable 1awlto charge or setoff all sums owing on the indebtedness against any and all such accounts, and, at Lender's option, to administratively heeze of such accounts to allow Lender to protect Lender's charge and netoff right^ provided in this paragraph. COLLATERAL- 1 acknowledge this Note is s??,r»d by a Mortgage dated November 2, 2001, to Lender on noel property located in County, Commonwealth oft; t nnsylvania, all the terms and conditions of which are hereby incorporated and made a part of this Note, The Real Property or its address is commonly known as 9953 ALICIA STREET, PHILADELPHIA, FA 19115, SETTLEMENT CHARGES. i agree to pay the charge; outlinad on the HUD 1A Settlement Statement ("HUD 1A"), executed by me in connection with this Note, which represents Lender's actual and verifiable closing costs, Lender may agree to pay these charges on my behalf at the time of settlement, However, in the event the loan Is terminated prior to the third anniversary of this Note, then 1 shall reimburse Linder for the total amount of the settlement charges set forth in the HUD IA. Lender may add this amount to my loan payoff, or if asked. I will pay Lender directly upon demand- RECEIPT OF PAYMENTS, For my payment to be credited to my account on the slime business day that it is received, the coupon portion of my statement and my payments must be mailed to the remittance address shown on the payment coupon and received by Lender at the post office by 9-,00 a.m, Payment must be in the form of a check or money order drawn in U,S, currency for the correct amount. Payments received by Lender at any other location or in any other form may not be credited to my account for up to two business days. Business days are Monday through Friday, excluding holidays. Except if prohibited by law, attorneys' fees and court and collection costs will bs added to the unpaid principal balance of this loan and will accrue interest as stated in this Note- The unpaid principal balance of thin loan will bear interest at the rate stated in this Note, even after a repossession or sale of any collateral, until repaid in full or until Lender obtains a judgment and Is required by law to charge a lower rate- in the evert of a Bankruptcy proceeding and, to the extent permitted by law, I agree that any unpaid Interest accrued prior to the filing' of the Bankruptcy proceeding shalt, following the filing of such petition, bear interest at the rate set forth in this Note. NOTICES. Any notice Lender is required to give me may be given at the Borrower's address as stated in thin Note unless I notify Lender in writing of a different address. Notice Lender gives will be deemed given when malted, postage prepaid, to such address, As permitted by law, if there is more than one Borrower, notice to any one of us shalt be deemed notice to each of us, SEVERABiLITY, ASSIGNMENT, AND OTHER RIGHTS. Any provision in this Note prohibited by appiieabtc law shelf be Ineffective to the extent of ouch prohibition without invalidating any other provision of this Note. Lender may assign Its rights under this Note without my consent, Lender may en€Orce this Agreement against me, my heirs and legal representatives, CREDIT AND FINANCIAL INFORMATION , I agree to provide Lender with updated financial information if requested to do so. f Akithorize Lender to investigate my credit worthiness. This may include obtaining information from credit reporting agencies- I authorim Lender to furnish credit information to persons who may lawfully receive and use such Information, MISCELLANEOUS. In connection with the loan and this Note, 1 may execute other documents including agreements concerning insurance collateral, disbursement of the loan and automatic payments, and such other agreements and documents are Incorporated by reference Into the terms of this Note, If I am in default on any debt that I owe Lander, Lender may ripply any payment on this Note towards the debt, that is in default- INFORMATION REPORTED TO CREDIT BUREAUS. UNDER THE FAIR CREDIT REPORTING ACT, 1 WAVE THE RIL;HT TO NOTIFY LENDER IF I BELIEVE LENDER HAS REPORTED INACCURATE INFORMATION ABOUT MY ACCOUNT TO A CREDIT BUREAU OR CONSUMER REPORTING AGENCY. SUCH NOTICES SHOULD BE SENT IN WRITING AND INCLUDE MY COMPLEM NAME. CURRENT ADDRESS, SOCIAL SECURITY NUMBER, TELEPHONi: NUMBER, ACCOUNT NUMBER, TYPE OF ACCOUNT. SPECIFIC ITEM OF DISPUTE AND THE REASON WHY I BELIEVE THE INFORMATION REPORTED IS IN ERROR, SEND TH6 NOTICE TO: SUNTRUST 13ANK PO BOX 85052, RICHMOND, VA 23265.. OTHER CHARGES, 11 1 make a payment with a check, and my check is dishonored for any reason. I agree to pay the foe established from time to time by the Lender for returned checks, I agree to pay a $5.00 charge for any account history i request- SUCCESSOR INTERESTS. The terms of this Note shalt be bending upon me, and upon my heirs, personal represonnatives, successors and assigns, and shall Inure to the benefit of Lender and its successors and assigns. NOTIFY US OF INACCURATE INFORMATION WE REPORT TO CONSUMER REPORTING AGENCIES, Please notify us If we report any inaccurate information about your account(s) to a consumer reporting agency, Your written notice describing the specific inaceumoyfies) should be sent to us at the following address: SunTrust Bank P.Q. Box 85052 Richmond, VA 23285-5131 C,FNERAL PROVISIONS. Lender may delay or forgo enforcing any of Its rights or remedies under this Note without losing them, t and any other person who signs, guarantees or endorse-- this Note, to the extent allowed by law, waive prasentment, demand for payment, rind notice of dishonor. Upon any change in the terms of this Nate, and unless otherwise expressly stated iii writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shalt be released from liability, All such parties agree that Lander may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fait to realize upon or perfect Lender's security interest in the collateral. Ali such parties also agree that Lander may modify this loan without the consent of or notice to anyone other than the party with whom the modification iz made. My obligations under this Note are joint and neveraf. This means that each person who signs this Note Is fully and personally obligated to keep ate of the promises made in this Note, including the promise to pay the full amount owed- PAGE n-/nF, 06/07/2006 10:29 267- 04/06 PROMISSORY NOTE Loan No: 04300004430053993 {Continued} Page 3 PRIOR TO SIGNING THIS NOTE. 1, AND EACH OF, US, READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. I. AND EACH OF US, AGREE TO THE TERMS OF THE NOTE. 0 I ACKNOWLEDGE RECEIPT OF A COMPLETED COY OF THIS PROMISSORY NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT ISJ TENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND. HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. 1% BORROWER; uEl? rnv t?n.n. •:. ?. X .44, - r ?- ISeali pA LIRIVERA, Individually a-r• EXHIBIT B 6 August 2004 To Whom it May Concern: This letter is to act as proof that I, Victor M. Rivera, Jr. have maintained the responsibility of the Second Mortgage through Citicorp Trust Bank for the address of 9953 Alicia Street, Philadelphia PA 19115. I will continued makin these payments after leaving this residence in January g 2003, and will continue to maintain the payments of $283.50 through its payoff After I establish a I will refinance the loan off the residence of 9953 Alicia st. Philadelphia, Pa. 19115. Citicorp Trust Bank, fsb Account # 3137182 # 800-997-8467 Victor M. Rivera, r. NOtWW 88-- .._. ED WAR o o ?Ca ARY PUeui rnst Cum°i QTY Commission Co, PA Expires qg, 2t? ? EXHIBIT B EXHIBIT C February 9, 2006 Re: Citicorp Trust Bank Acct# 3137182 Dear Mr. Victor Rivera Jr., Enclosed you will find a letter that is notarized dated the 6th of August in the year 2004. That letter serves as a promissory note and you accepting the res ons bilty of the Second Mortgage with the above lender attached to the 9953 Alicia St. property. I was contacted by Ms. Ida Castellano on the 14th of October in the year 2005 with an interest to refinance. After going through the process, it was a stipulation to payoff the second mortgage. Enclosed also is the payoff letter from Citicorp advising the amount that was paid off through the refinance process. According to the signed letter that was notarized you agreed to continue and maintain the payments of $283.50 through its payoff. Correct me if i am wrong, but you have not paid it off. Which means that if Ms. Castellano did not refinance you would still be making payments to Citicorp. This letter is just an advisory letter asking you to redirect your payments from Citicorp to Ms. Castellano as he same terms you signed for on the notarized letter. Ms. Castellano and yourself should keep a track as to how much you paid, you will be advised on a earl basis or at your request as to the amounts. Y Y This letter also is to serve as notice to advise that further legal actions ma to place if payments are not redirected accordingly. Y ke Thank you for your cooperation in this matter. Sincerely, ID - 0 uol b lK i Brian Howell Sr. Mortgage Consultant cc: Ida Castellano EXHIBIT C VERIFICATION IDA L. CASTELLANO, Plaintiff in this action hereby states that the statements of fact made in the foregoing COMPLAINT are true and correct to the best of her Personal knowledge, information, and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unworn falsification to authorities. Date: I L. Castellano lk n ? -n If -- £rt C ;ri -o 11 SHERIFF'S RETURN - REGULAR CASE NO: 2006-06117 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CASTELLNO IDA L VS RIVERA VICTOR M JR MICHAEL BARRICK , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon the RIVERA VICTOR M JR DEFENDANT , at 1418:00 HOURS, on the 25th day of October , 2006 at 525 SPRING GARDEN STREET CARLISLE, PA 17013 by handing to KATHY CAPELLO, MOTHER IN LAW, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 4.40 Postage .39 Surcharge 10.00 R. Thomas Kline .00 32.79? 10/27/2006 DOUGLAS LOVELACE Sworn and Subscibed to By: before me this day eputy Sher'f of A. D. IDA L. CASTELLNO, Plaintiff V. VICTOR M. RIVERA, JR. Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 06-6117 CIVIL TERM NOTICE TO PLEAD TO: Ida L. Castellino c/o Douglas Lovelace, Esquire 36 Donegal Drive Carlisle, Pennsylvania 17013 You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or a judgment may be entered against you. Date: January 5, 2007 Respectfully Submitted, Rominger & Whare ,tar] E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID# 81924 Attorney for Defendant IDA L. CASTELLNO, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW VICTOR M. RIVERA, JR. : No. 06-6117 CIVIL TERM Defendant ANSWER AND NEW MATTER AND NOW, comes Defendant, Victor M. Rivera, Jr., by and through his counsel, Karl E. Rominger, Esquire, and in response to the Complaint avers as follows: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted in part. It is admitted that the loan was taken out. It is denied that it was solely as to the defendant. 5. Denied. Strict proof of the same is demanded at trial. By way of further answer, the proceeds of the loan were for the benefit of the marriage. 6. Admitted. 7. Denied. Strict proof of the same is demanded at trial. By way of further answer the loan was a marital loan and it was the intent of the parties that the marriage be responsible. 8. Admitted. 9. Denied. By way of further answer, the reasons for the divorce are irrelevant to this action. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted insomuch as to in fact as the defendant has remarried no other allegations are denied. By way of further answer the allegations are irrelevant. 14. Denied. Strict proof is demanded at trial. 15. Admitted. 16. Denied. The defendant is without sufficient information as to determine the validity of this paragraph. Strict proof is demanded at trial. 17. Denied. The defendant is without sufficient information as to determine the validity of this paragraph. Strict proof is demanded at trial. 18. Denied. Strict proof of the same is demanded at trial. 19. Denied. The defendant is without sufficient information as to determine the validity of this paragraph. Strict proof is demanded at trial. 20. Admitted. 21. Conclusion of the law and requires no answer. By way of further answer it is denied. Strict proof of the same is demanded at trial. 22. Conclusion of the law and requires no answer. By way of further answer it is denied. Strict proof of the same is demanded at trial. 23. Conclusion of the law and requires no answer. By way of further answer it is denied. Strict proof of the same is demanded at trial. 24. Conclusion of the law and requires no answer. By way of further answer it is denied. Strict proof of the same is demanded at trial. 25. Conclusion of the law and requires no answer. By way of further answer it is denied. Strict proof of the same is demanded at trial. 26. Denied. Strict proof of the same is demanded at trial. 27. Admitted. 28. Denied. Strict proof of the same is demanded at trial. 29. Denied. The plaintiff paid off Defendant's loan. It is admitted that no further loans were ever made once it was paid-off. 30. Admitted. By way of further answer, Plaintiff has paid off that loan 31. Denied by way further answer, the marriage took full benefit of the loan. 32. Admitted. By way of further answer, it is admitted that the balance was substantial; the exact figure should be left to strict proof at trial. 33. Admitted. 34. Requires no answer. 35. Conclusion of the law and requires no answer. By way of further answer it is denied. Strict proof of the same is demanded at trial. 36. Conclusion of the law and requires no answer. By way of further answer it is denied. Strict proof of the same is demanded at trial. 37. Denied and strict proof of the same is demanded at trial. WHEREFORE, Defendant respectfully requests this honorable court to enter judgment in his favor. 38. Requires no answer 39. Denied and strict proof of the same is demanded at trial. By way of further answer, it is a conclusion of law and requires no answer. 40. Denied. By way of further answer defendant met his obligations at all times under the contract of the parties. 41. Denied. Strict proof of the same is demanded at trial. By way of further answer, defendant owes plaintiff nothing. 42. Denied. Strict proof of the same is demanded at trial. By way of further answer the result is in compliance with the contract agreed to by the parties. WHEREFORE, Defendant respectfully requests this honorable court to enter judgment in his favor. NEW MATTER 43. Previous paragraphs are incorporated as if by reference. 44. Plaintiff is not entitled to relief as defendant has met his obligation to continue making payments up and until the time of the payoff of the loan. 45. Wife chose to pay off the loan and has abrogated defendant's duties under the contract. 46. Defendant at all times intended to continue with payments if and until he could refinance the loan or it was otherwise paid off. 47. Wife unilaterally chose to activate the pay off clause of the very contract she now asserts is broken. 48. There is no equitable claim nor unjust enrichment claim(s) insomuch as both of these matters are controlled by the contract. WHEREFORE, the Defendant respectfully requests judgment in has favor and against Plaintiff. Respectfully Submitted, Rominger & Whare Date: January 5, 2007 Marl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court lD# 81924 Attorney for Defendant IDA L. CASTELLNO, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW VICTOR M. RIVERA, JR. : No. 06-6117 CIVIL TERM Defendant VERIFICATION Karl E. Rominger, Esquire, states that he is the attorney for, Defendant Victor M. Rivera, Jr., in this action; that he makes this affidavit as attorney because he has sufficient knowledge or information and belief, based upon his investigation of the matters averred or denied in the foregoing document; and that this statement is made subject to the penalties of 18 Pa. C.S. Pa.C.S. §4904, relating to unworn falsification to authorities. Date: January 5, 2007 "'Karl E. Rominger, Esquire IDA L. CASTELLNO, : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW VICTOR M. RIVERA, JR. : No. 06-6117 CIVIL TERM Defendant CERTIFICATE OF SERVICE I, Karl E. Rominger, Esquire Attorney for the Defendant, Victor M. Rivera, Jr., do hereby certify that I this day served copy of the within Answer and New Matter to the following by depositing the same in the United States mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: Douglas Lovelace, Esquire 36 Donegal Drive Carlisle, Pa 17013 Respectfully Submitted, Rominger & Whare Date: January 5, 2007 Karl E. Rominger, Esquire 155 South Hanover Street Carlisle, Pennsylvania 17013 (717) 241-6070 Supreme Court ID# 81924 Attorney for Defendant q v 2s. slog 4j :t DOUGLAS C. LOVELACE, JK, Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 IN THE COURT OF COMMON PLEAS IDA L. CASTELLANO CUMBERLAND COUNTY, Plaintiff PENNSYLVANIA V. CIVIL ACTION - IN LAW VICTOR M. RIVERA, JR. Defendant NO: 06-6117, CIVIL TERM PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER AND NOW, January 25, 2007, Plaintiff Ida L. Castellano, by her undersigned attorney, files this Reply to Defendant's New Matter and avers as follows: 43. Plaintiff incorporates herein by reference the averments contained in paragraphs 1 through 42, inclusive, of Plaintiff's Complaint, as fully as though the same were set forth herein at length. 44. Denied. The averment of paragraph 44 of Defendant's New Matter sets forth an incorrect conclusion of law to which no further response is required by the Pennsylvania Rules of Civil Procedure. In the event and to the extent the averment in paragraph 44 of Defendant's New Matter is found not to be a conclusion of law, Plaintiff incorporates herein the averments contained in paragraphs 1 through 42, inclusive, of Plaintiff's Complaint, as fully as though the same were set forth herein at length. By way of fiuther answer, Defendant is obligated to continue making payments on the loan until Defendant has paid-off the loan, as evidenced by Defendant's promise set forth in Exhibit B to Plaintiff s Complaint. By way of further answer, beginning in February 2006, Defendant was obligated to make said payments to Plaintiff, as instructed by Brian Howell, of Citicorp Trust Bank, as evidenced by Exhibit C of Plaintiff's Complaint. 45. Denied. The averment of paragraph 45 of Defendant's New Matter sets forth an incorrect conclusion of law to which no further response is required by the Pennsylvania Rules of Civil Procedure. In the event and to the extent the averment in paragraph 44 of Defendant's New Matter is found not to be a conclusion of law, Plaintiff incorporates herein the averments contained in paragraphs 1 through 42, inclusive, of Plaintiff s Complaint, as fully as though the same were set forth herein at length. By way of further answer, Plaintiff paid the balance of the loan to Citicorp Trust Bank only after consulting with Defendant and on the condition that Defendant would direct future payments to Plaintiff. 46. Denied. Defendant assumed sole responsibility for repayment of the said loan and promised to continue repayment of the loan until Defendant paid it off. By way of further answer, Defendant ceased repayment of the loan in February 2006, and Plaintiff notified Defendant on or about June 28, 2006 that she held him in default. 47. Denied. Plaintiff consulted with Defendant before paying the outstanding balance of the loan to Citicorp Trust Bank to confirm that Defendant understood he would remain obligated to paying-off the loan to Plaintiff, under the terms of the contract. Defendant affirmed his obligation and told Plaintiff to "do what you have to do." Plaintiff paid the balance of the loan to Citicorp Trust Bank, as a prerequisite to refinancing her home and only after securing Defendant's concurrence and affirmation. Defendant now seeks to abrogate his obligation and avoid his responsibility. 48. Denied. The averment of paragraph 48 of Defendant's New Matter sets forth an incorrect conclusion of law to which no further response is required by the Pennsylvania Rules 2 of Civil Procedure. In the event and to the extent the averment in paragraph 44 of Defendant's New Matter is found not to be a conclusion of law, Plaintiff incorporates herein the averments contained in paragraphs 1 through 42, inclusive, of Plaintiffs Complaint, as fully as though the same were set forth herein at length. By way of further answer, Defendant appears to aver inconsistently in paragraphs 47 and 48 of his New Matter that the said contract is no longer valid but that, still, its terms continue to govern Plaintiffs claims against defendant. WHEREFORE, Plaintiff respectfully requests this honorable Court to enter judgment in her favor and against Defendant in an amount of $20,724.55 plus accrued interest at the rate of thirteen point sixty-five percent (13.65%) per annum, reasonable attorney fees, and any other costs and interest that may be provided by law, an amount that does not exceed the jurisdictional amount for compulsory arbitration in accordance with local rule. x6eif tv" 4 -,,/- Douglas C. Lovelace, Jr., Esquire Attorney for Defendant Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 3 VERIFICATION IDA L. CASTELLANO, Plaintiff in this action, hereby states that the statements of fact made in the foregoing PLAINTIFF'S REPLY TO DEFENDANT'S NEW MATTER are true and correct to the best of her personal knowledge, information, and belief. The undersigned understands that the statements herein are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unworn falsification to authorities. Date: z cJ f t .? Ida . Castellano CERTIFICATE OF SERVICE I, Douglas C. Lovelace, Jr., attorney for the Plaintiff, Ida L. Castellano, hereby certify that on January 25, 2007, I served a true and correct copy of the foregoing Plaintiff's Reply to Defendant's New Matter upon the following below named individual by depositing the same in the United States mail, first class, postage prepaid, at Carlisle, Cumberland County, Pennsylvania. SERVED UPON: Karl E. Rominger, Esquire Rominger & Whare Attorneys at Law 155 South Hanover Street Carlisle, PA 17013 Attorney for Defendant zore-, 4q - Douglas C. Lovelace, Jr., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717)385-1866 n ? C? r 1-3'7 IDA L. CASTELLNO v. Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - IN LAW NO:: 06-6117, CIVIL TERM VICTOR M. RIVERA, JR. Defendant To the Prothonotary: PRAECIPE TO DISCONTINUE ACTION Please mark this action settled, discontinued, and ended as to all defendants (upon payment of your costs only). Dated: Jdh- 012. 4V DOUGLAS C. LOVELACE, JR., Esquire Attorney Identification Number: 83889 36 Donegal Drive Carlisle, PA 17013 (717) 385-1866 Attorney for Plaintiff Q co