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Home My WebLink About06-6136Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 j goldberg@ssbc-law. com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, CIVIL TERM (LAW) Plaintiffs V. UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, NO. O Defendants JURY TRIAL DEMANDED 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 of 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 S OFFICE CAN PROV DES YOGO TO U WITH D FORTH BELOW. TH TH INFORMATION ABOUT HIRING A LAWYER IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH THE INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 j goldberg@ssbc-law.com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, CIVIL TERM (LAW) Plaintiffs V. UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, r NO. Defendants JURY TRIAL DEMANDED COMPLAINT AND NOW COME the Plaintiffs, Vincent Mark Polinka and Terri L. Polinka, by and through her attorney, Joseph K. Goldberg, Esquire, who sue the Defendants, as follows: INTRODUCTION The Plaintiffs seek legal and equitable relief arising out of the acts of Defendants committed during the mortgage refinancing of a loan secured by the Plaintiffs' residence. The relief sought is for violations of: the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et seq (hereafter "Consumer Protection Law"), as well as for common law fraud. Defendant United engaged in unfair, unlawful, illegal and deceptive business practices in soliciting, inducing and closing this residential loan transaction, which damaged Plaintiffs and violated there rights. Those practices include: deliberately misrepresenting the beneficial effect of refinancing; engaging in "bait and switch" of loan terms at the last minute; failing to provide Plaintiffs with required notifications when loans were provided under terms different than those originally promised; and encouraging and pressuring the Plaintiffs to enter into loan transactions with payments which Defendant United knew were beyond the ability of the borrowers to sustain. Defendant United collected high fees and other payments for these refinancings, with no regard for the welfare or rights of the Plaintiffs. Defendant United stripped the equity which homeowners have worked to accumulate in their property solely for the profit of all Defendants. PARTIES AND VENUE 1. The Plaintiffs are Vincent Mark Polinka and Terri L. Polinka, adult individuals who are husband and wife, who reside at 829 Fairfield Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant United Medical Bank, FSB, (hereafter referred to as "Defendant United") is a federally chartered banking institution which operates a mortgage loan brokerage in Pennsylvania under its division called United Federal Mortgage, from an address of 2200 Georgetown Drive, Suite 201, Sewickley, PA 15143. 3. Defendant Homecomings Financial USA Corporation (hereafter referred to as "Defendant Homecomings") is a Delaware corporation that operates throughout the Commonwealth of Pennsylvania as a mortgage loan broker and secondary 2 mortgage lender. 4. Defendant Residential Funding USA Corporation (hereafter referred to as "Defendant Residential") is a Delaware corporation. 5. Defendant Homecomings is a wholly-owned subsidiary of Defendant Residential, and at all times relevant to this lawsuit acted as agent of, for the benefit of and on behalf of Defendant Residential. 6. Most of the illegal acts complained of herein occurred at the Plaintiffs' residence, thereby making this court the proper venue for this action. FACTS AND BACKGROUND 7. In late October or early November, 2005, the Plaintiffs decided to refinance their existing first mortgage loan, as it had a high interest rate and a payment that was making it difficult for the Plaintiffs to pay all their other bills. 8. At that time, the Plaintiffs received a mailed solicitation letter from Defendant United, which stated that Defendant United could lower a borrower's monthly payment from an existing mortgage loan. In response, Plaintiff Mark Polinka telephoned Chuck Marino, a vice-president of Defendant United, and spoke with him about possible refinancing terms. Mr. Polinka provided Mr. Marino with certain financial information. g. The following day, Mr. Marino called the Plaintiffs and informed them that Defendant United could provide them with a loan that would have a monthly payment starting in the $500 range, then slightly increasing each year for the first five years, at a fixed rate of interest of under 7%. 10. The Plaintiffs agreed to apply for the loan. They were eventually 3 approved for a mortgage loan. 11. The Plaintiffs received certain documentation from Defendant United, but were never provided with disclosures or other documents that fully detailed the true nature of the loan. 12. On the date of the loan closing, the Plaintiffs discovered for the first time that the loan had an adjustable rate of interest that began at 9.950% and would adjust two months later. The loan rate would never go below the initial rate. 13. The loan had a substantial prepayment penalty, which was not adequately disclosed until the time of closing. 14. The loan had a reverse amortization feature, which was not adequately disclosed to the Plaintiffs. In fact, Plaintiffs never heard the term "reverse amortization" until they had discussions with Defendant Homecomings a month or two after the closing. 15. Prior to closing, the Plaintiffs discussed with Mr. Marino the fact that the monthly payments for the first five years would not cover all accrued monthly interest. They asked him how much interest would accumulate at the end of the reverse amortization period of five years, and Mr. Marino told the Plaintiffs that the total accumulated interest would be approximately $6,000. 16. The Plaintiffs relied upon the aforesaid representation made by Mr. Marino is deciding to proceed with and not rescind the transaction. 17. The representation as to the amount of accumulated interest was false, was known by Mr. Marino to be false at the time he made it, and was made to induce the Plaintiffs to proceed with and not rescind the transaction. In fact, the amount of 4 accumulated interest due to the negative amortization feature will be from $4,000 to $6,000 er, ear, or approximately $20,000 to $30,000. 18. Had the Plaintiffs been properly and truthfully advised of the true nature of the terms of the loan, they would not have consummated the transaction and entered into the mortgage loan. 19. The mortgage loan from Defendant United provides the Plaintiffs with no financial benefit. 20. As a result of the mortgage loan transaction, Defendant United has gained substantial financial benefit in the form of high loan fees and the accumulation of a high interest obligation. 21. Because of the presence of the prepayment penalty, which was not disclosed to the Plaintiffs until the time of closing, they are unable to refinance to an appropriate mortgage loan. 22. By virtue of the fraud and deceptive conduct detailed above, Defendants Homecomings and Residential are liable to the Plaintiffs for the claims asserted herein COUNTI Violation of the Consumer Protection Law 23. The averments of paragraphs 1 through 22 are incorporated herein by reference as if fully set forth. 24. The Plaintiffs entered into the loan transaction primarily for personal, family or household purposes. 25. At all times relevant hereto, Defendants were engaged in trade or commerce as defined in § 201-2(3) of the Consumer Protection Law, 73 P.S. § 201- 5 2(3). 26. Pursuant to § 201-9.2 of the Consumer Protection Law, the Plaintiffs aver Defendant United's acts violate § 201-3 of the Consumer Protection Law, 73 P.S. § that 201-3, by violating the following subsections of § 201-(4) of the Consumer Protection Law, 73 P.S. § 201-2(4): (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have; ndard (vii) Representing that goods or servics{ ero °model?if they aae of anothelrty or grade, or that goods are of a particular y (xxii) Engaging in any other fraudulent o deceptive conduct which creates a likelihood of confusion or of misunderstanding. 27. Plaintiffs reasonably relied upon the deceptive conduct of Defendant United in deciding to enter into the loan transaction, and did so to their detriment. 28. Defendant United failed to provide the Plaintiff with disclosures as required by the Truth in Lending Act, 15 U.S.C. § 1601, et seq., for the deceptive purpose of keeping Plaintiffs from knowing the true nature of the loan terms until after closing and their three-day rescission period had expired 29. The Plaintiffs relied upon Defendant United to treat them fairly and in accordance with all applicable laws. 30. As a result Defendant United's violations of the Consumer Protection Law, Plaintiffs have suffered an ascertainable loss of money or property. WHEREFORE, Plaintiffs respectfully request this Honorable Court grant judgment in favor of Plaintiffs and against Defendants as follows: 6 a) a judgment in the amount of three times the loss suffered by Plaintiffs as proven at trial of this matter; b) an award of attorney's fees and all costs of Plaintiff; and, c) such other relief the court deems just and proper. COUNT II Fraud (Damages) 31. The averments of paragraphs 1 through 30 are incorporated herein by reference as if fully set forth. 32. Defendant United engaged in the aforesaid and failed to make required disclosures for the purpose of inducing the Plaintiffs to act to their detriment and to the benefit of Defendants. 33. Defendant United did so with knowledge of the falsity of its statements, intentionally and with reckless disregard for the rights and welfare of the Plaintiffs. 34. The Plaintiffs reasonably relied upon the misrepresentations and deceptive acts of Defendant United, and did so to their detriment. 35. As a result of the aforesaid acts, the Plaintiffs suffered actual damages. WHEREFORE, the Plaintiff respectfully requests this Honorable Court grant judgment in their favor and against the Defendants for actual damages, punitive damages, costs of this action, and such other relief the court deems just and proper. COUNT III Fraud (Rescission) 36. The averments of paragraphs 1 through 35 are incorporated herein by reference as if fully set forth. 7 37. As a result of the aforesaid fraud committed by Defendant United, the Plaintiffs entered into a loan transaction substantially different than as represented, and are therefore entitled to rescind the transaction with Defendants. WHEREFORE, the Plaintiffs demand judgment against Defendants, granting rescission of the loan transaction and an award of restitution for their loss suffered, plus punitive damages and costs. Ily old r ,Esquire orney ID N . 4 82 080 Lingle o Road, Suite 106 0 Harrisburg, 17110 (717)703-3600 Attorney for Plaintiffs Date: l O^` ? " " v 8 VERIFICATION V. Mark Polinka, hereby state that I have reviewed the foregoing Complaint, and verify that the facts set forth in the document are true and correct to the best of my knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Dated: A ?? OC V. MARK POLINKA N lv l? 1 w v{ J C? 0 N C7 0 r 2,-m Joseph F. Riga Pa. Attorney ID No. 34687 McDowell Riga A Professional Corporation 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 (610) 525-5518 (610) 525-5521 FAX Counsel for Residential Funding Company LLC and Homecoming Financial LLC VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs, V. UNITED MEDICAL BANK, FSB, HOMECOMING FINANCIAL USA CORPORATION AND RESIDENTIAL FUNDING USA CORPORATION, Defendant. -----------------------------------°----------J IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 06-6136 Civil Term PRELIMINARY OBJECTIONS OF DEFENDANTS HOMECOMINGS FINANCIAL LLC AND RESIDENTIAL FUNDING LLC TO THE COMPLAINT OF PLAINTIFFS VINCENT MARK POLINKA AND TERRI L. POLINKA Defendants Residential Funding Company LLC (improperly named Residential Funding USA Corporation, hereinafter "Residential") and Homecoming Financial LLC (improperly named Homecomings Financial USA Corporation, and hereinafter, "Homecomings," and together with Residential, the "Servicer Parties"), by their attorneys, McDowell Riga, and pursuant to Rule 1028 of the Pennsylvania Rules of Civil Procedure, hereby make the following preliminary objections to the complaint (the "Complaint") filed by the plaintiffs, Vincent Mark Polinka and Terri L. Polinka ( together, the "Plaintiffs"), and in support thereof, aver as follows: Baclmround Facts and Procedural History 1. Plaintiff entered into a mortgage secured loan with defendant United Medical Bank, FSB ("United") on December 10, 2005 (the "Loan"). (Complaint, ¶¶ 10-18). 2. True and correct copies of the Loan's note and mortgage, referred to in the Complaint, are attached hereto as Exhibits "A" and "B" respectively.' (see Complaint, ¶¶ 7, 9, 10-14,18, 21). 3. Plaintiffs complain only about alleged conduct of the loan originator, United. (Complaint, ¶T 8-21). 4. The Complaint contains absolutely no allegation of wrongful conduct on the part of the Servicer Parties who are master and sub-servicers of the Loan for an unrelated third-party who acquired the Loan by assignment after the Loan was closed by United.' 5. Rather, without factual or legal support, Plaintiffs baldly conclude: `By virtue of the fraud and deceptive conduct detailed above [all of which is alleged to have been conduct of United], Defendants Homecomings and Residential are liable to Plaintiffs for the claims asserted ' In the context of preliminary objections, a court may consider a document not attached to the subject pleadings when the document is part of the foundation of the suit. Conrad v. Pittsburgh, 421 Pa. 492, 495 n.3, 218 A.2d 906, 907 n.3 (1966). Residential, the master servicer, acquires residential mortgage loans on the secondary market, packages them as securities (a process known as "securitization"), and then assigns the pool of loans to a trustee. Thus, Residential did acquire the Loan in this case in its own name for a brief period of time before the Loan was pooled with others and assigned to Deutsche Bank, as Trustee ("Deutsche Bank"). Nonetheless, both the acquisition by Residential (on or about 1/30/06) and, necessarily, the acquisition of the pool that includes the Loan by Deutsche Bank subsequently, occurred after the Loan application, underwriting and consummation by United (on December 10, 2005). It is acknowledged that this explanation includes facts that are not included in the Complaint. This background is not germane to the relief sought herein, however, but included merely to provide the Court with the appropriate context for the relief sought. 2 herein." (Complaint, ¶22). 6. The Complaint is legally insufficient and does not advance viable causes of action against the Servicer Parties, and should be dismissed. See Rule 1028 (a) (4). In addition, the Complaint fails to conform to Court rule and lacks sufficient detail and should be dismissed or stricken. See Rule 1028 (a) (2), (3). Therefore, the Servicer Parties submit the following preliminary objections: 1. In Plaintiffs' Complaint Should Be Dismissed For Failure to Plead a Legally Sufficient Cause of Action Pursuant to Rule 1028 (a)(4) Because Plaintiffs Allege No Wrongdoing by the Assignee Defendants 7. The Assignee Defendants hereby incorporate all preceding paragraphs as if set forth herein at length. Pennsylvania Rule of Civil Procedure 1028 (a) (4) provides that a party may raise a preliminary objection to a pleading on the ground that it is legally insufficient. See Pa.R.Civ.P. 1028(a). 9. The Plaintiffs' claims for fraud and violation of the Pennsylvania Unfair Trade Practices and Consumer Fraud Act all arise out of the alleged conduct of United that is said to have occurred at or before the Loan closing - before the Assignee Defendants had any involvement in the Loan whatsoever. (Complaint, ¶¶ 8-21). 10. Pennsylvania is a fact-pleading jurisdiction. Thus, a complaint must not only apprise the opposing party of an asserted claim, but also formulate the issues by summarizing those facts essential to support the claim. Corestates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1056 (Pa. Super. 1999). The pleading must define the issues, and thus, every act or performance essential to that end must be set forth in the complaint. Santiago v. Pa. National Mutual Cas. Ins. 3 Co., 418 Pa. Super. 178, 185, 613 A.2d 1235, 1238 (1992). 11. The Complaint utterly fails to make out a claim against the Assignee Defendants and instead, merely asserts that the Assignee Defendants are liable for the alleged conduct of United, an unrelated co-defendant. WHEREFORE, the Assignee Defendants respectfully request that this Court sustain its preliminary objection in the nature of a motion to dismiss the Plaintiffs' Complaint because it is legally insufficient, together with costs and attorney's fees as permitted by applicable law. II. In the Alternative, Plaintiffs' Complaint Should Be Dismissed For Insufficient Specificity Pursuant to Rule 1028 (a)(2), (3) 12. The Assignee Defendants hereby incorporate all preceding paragraphs as if set forth herein at length. 13. Pennsylvania Rule of Civil Procedure 1028 (a) (2) provides that a party may raise a preliminary objection to a pleading on the ground that it fails to conform to law or a rule of court or includes scandalous or impertinent matter. See Pa.R.Civ.P. 1028(a) (2). 14. Pennsylvania Rule of Civil Procedure 1028 (a) (3) provides that a party may raise a preliminary objection to a pleading on the ground that it is not sufficiently specific. See Pa.R.Civ.P. 1028(a) (3). 15. Pennsylvania Rule of Court 1019 (b) states that allegations of fraud must be made with particularity. 16. Pennsylvania case law also requires that a cause of action for fraud must plead facts which support knowing or reckless intent as to the falsity of a representation. See Duane Morris, LLP v. Todi, No. 001980, 2002 WL 31053839, at *4 (Phila. C.C.P., Sept. 3, 2002) 4 (sustained objections that allegations of fraud were insufficient in their particularity). 17. Plaintiffs allege that the Assignee Defendants are liable for consumer and common law fraud without specifying at all, much less in any detail, any facts that detail the Assignee Defendants' alleged wrongful conduct, let alone facts which support intent. 18. The Complaint containing only fraud claims does not conform with the Pennsylvania law and Rules of Court requiring a claimant to plead fraud with particularity. WHEREFORE, the Assignee Defendants respectfully request that this Court to sustain its preliminary objection in the nature of a motion to strike the Complaint because it lacks necessary specificity, together with costs and attorney's fees as permitted by applicable law. III. The Complaint Should Be Dismissed For Failure to Plead a Legally Sufficient Cause of Action Pursuant to Rule 1028 (aa)(4) Because Plaintiffs' Claims Sound in Contract, not Fraud 19. The Assignee Defendants hereby incorporate all preceding paragraphs as if set forth herein at length. 20. Pennsylvania Rule of Civil Procedure 1028 (a) (4) provides that a party may raise a preliminary objection to a pleading on the ground that it is legally insufficient. See Pa.R.Civ.P. 1028(a). 21. Plaintiffs' claims are based on a Loan agreement they entered into with United. (seee.a., Complaint, ¶¶10-14) 22. When all the bald accusations and unfounded legal conclusions contained in the Complaint are stripped away, Plaintiffs' only complaint concerns the financial terms of their Loan contract. (Id.). 23. Despite the fact that Plaintiffs' rights, obligations and claims all arise from a contract, Plaintiffs allege only tort causes of action consisting of common law fraud and statutory consumer fraud. 24. Plaintiffs should not be permitted to seek a tort recovery for an alleged breach of contract because to permit a promisee to sue a promisor in tort for an alleged breach of contract would erode the usual rules of contractual recovery and inject confusion into well-settled forms of action. Yocca v. Pittsburgh Steelers Sports, Inc., 806 A. 2d 936, 943-44 (Pa. Cmwlth. Ct. 2002), rev'd in part on other grnds, 578 Pa. 479, 854 A.2d 425 (2004). See also Duane Morris, LLP v. Todi, No. 001980, 2002 WL 31053839, at *4 (Phila. C.C.P., Sept. 3, 2002) ("If the court were to find such a pleading sufficient, any breach of contract claim could be bumped up to a fraud claim.... Courts have declined to do so, invoking the gist of the action doctrine to bar a fraud claim where the defendant negligently or intentionally breached a contract.") 25. The gist of Plaintiffs' claims (assuming they properly can be prosecuted against the Servicer Parties to begin, with which the Servicer Parties deny) is the validity of a Loan contract, and therefore, Plaintiffs' claims sound in contract, not tort. WHEREFORE, the Assignee Defendants respectfully request that this Court sustain its preliminary objection in the nature of a motion to dismiss the Plaintiffs' Complaint because it is legally insufficient, together with costs and attorney's fees as permitted by applicable law. IV. The Complaint Should Be Dismissed For Failure to Conform to Court Rule Pursuant to Rule 1028 (a)(2) 26. The Assignee Defendants hereby incorporate all preceding paragraphs as if set forth herein at length. 27. Pennsylvania Rule of Civil Procedure 1028 (a)(2) provides that a party may raise a 6 preliminary objection to a pleading on the ground that it fails to conform to law or rule of court. See Pa.R.Civ.P. 1028(a)(2). 28. Pennsylvania Rule of Civil Procedure 1019(1) states: "When any claim ... is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof...." 29. As noted above, the Plaintiffs' claim that the terms of their Loan contract are not as they were promised. 30. The documents consisting of that loan contract were not attached to the Complaint in violation of the Rule and, upon information and belief, to disguise the fact that only United had any role in the negotiation and consummation of the Loan. 31. A brief perusal of the Loan note and mortgage, that should have been attached to the Complaint and that is attached hereto as Exhibits "A" and "B," demonstrates that the only defendant party present at the time of the alleged wrongful conduct, and party to the Loan contract at that time, was United. 32. As such, the Complaint violates Rule 1019(i) of the Pennsylvania Rules of Civil Procedure, and should be stricken. WHEREFORE, the Assignee Defendants respectfully request that this Court sustain its 7 preliminary objection in the nature of a motion to dismiss the Complaint because it fails to conform to Rule 1019(i) of the Pennsylvania Rules of Civil Procedure, together with costs and attorney's fees as permitted by applicable law. Dated: Bryn Mawr, PA Respectfully submitted, November 10, 2006 McDOWELL RIGA 842 West Lanca v Second 904- BryT.1,Kawr, PA 1 10 By: Counsel for Defendants, Homecomings Financial LLC and Residential Funding LLC 8 EXHIBIT "A" EXHIBIT "B" VERIFICATION I, L4 of ??L on behalf of / v Residential Funding LLC, defendant in the above captioned action, hereby state that the facts set forth in the foregoing Preliminary Objections are true and correct to the best of my knowledge, information and belief based on my review of RFC's records. This statement is made subject to the penalties of 18 Pa. C.S.A. 3 4904 relating to unsworn falsification to authorities. Dated: November L(? , 2006 Residential Funding LLC VIW?Cv'"? VERIFICATION ?AA LM I, _ r r f M i LCV/ , as fec fast to 1? off ,,, on behalf of Homecomings Financial L,LC, defendant in the above captioned action, hereby state that the facts set forth in the foregoing Preliminary Objections are true and correct to the best of my knowledge, information and belief based on my review ofR.FC's records. This statement is made subject to the penalties of l8 Pa. C.S.A.. 3 4904 relating to unswom falsification to authorities. Dated: November I O .2006 Homecomings Financial LLC B NAME: MiPhi cV TITLE: Fwecbruwe SPCC/41- CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, a true and correct copy of the foregoing Preliminary Objections were served by United States mail, postage prepaid, upon the following: Joseph K. Goldberg, Esq. 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 United Medical Bank, FSB 2200 Georgetown Drive Suite 201 Sewickley, PA 15143 Dated: Bryn Mawr, PA November 10, 2006 Counsel for Plaintiffs Defendant McDOWELL RIG 842 West L ster A Seco oor B Mawr, PA 1901 By: J n Counsel for Defendants, Homecomings Financial LLC and Residential Funding LLC BANKS & BANKS BY: DAVID BANKS, ESQUIRE IDENTIFICATION NO. 57018 3038 CHURCH ROAD LAFAYETTE HILL, 19444 (610) 940-3900 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs V. UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, Defendants CIVIL TERM (LAW) NO, 06-6136 JURY TRIAL DEMANDED ENTRY OF APPEARANCE To The Prothonotary: Kindly enter the appearance of David Banks on behalf of defendant United Medical Bank, FSB. David Banks, Esquire CERTIFICATE OF SERVICE I, David Banks, do hereby certify that on this 27th day of December 2006,1 caused a true and correct copy of my Entry of Appearance to be served upon the following counsel via United States First-Class Mail, postage pre-paid to: Joseph K. Goldberg, Esquire The Law Office of Joseph K. Goldberg 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 David qz?W, Esquire Atto for United Medical Bank, FSB Lr-) r r t5 cJ Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 j gol dberg@ssbc-law. corn PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs V. CIVIL TERM (LAW) UNITED MEDICAL BANK, FSB, NO. 06-6136 DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as Successor Trustee to J.P. Morgan Chase, JURY TRIAL DEMANDED Defendants 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 of relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. 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 THE INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 (800) 990-9108 Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 j goldberg@ssbc-1 aw. com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, CIVIL TERM (LAW) Plaintiffs V. UNITED MEDICAL BANK, FSB, NO. 06-6136 DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as successor Trustee to J.P. Morgan Chase, JURY TRIAL DEMANDED Defendants AMENDED COMPLAINT AND NOW COME the Plaintiffs, Vincent Mark Polinka and Terri L. Polinka, by and through their attorney, Joseph K. Goldberg, Esquire, who sue the Defendants, as follows: INTRODUCTION The Plaintiffs seek legal and equitable relief arising out of the acts of Defendant United Medical Bank, FSB (hereinafter refereed to as "Defendant United") committed during the mortgage refinancing of two loans secured by the Plaintiffs' residence. The relief sought is for violations of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et seq (hereafter "Consumer Protection Law"), as well as for common law fraud. Defendant United engaged in unfair, unlawful, illegal and deceptive business practices in soliciting, inducing and closing this residential loan transaction, which damaged Plaintiffs and violated their rights. Those practices include: deliberately misrepresenting the beneficial effect of refinancing; failing to provide Plaintiffs with required notifications; and encouraging and pressuring the Plaintiffs to enter into loan transactions with payments and other negative effects which Defendant United knew were beyond the ability of the borrowers to sustain and which would place them in a position in five years that would make it impossible to retain their residence. Defendant United collected high fees and other payments for these refinancings, with no regard for the welfare or rights of the Plaintiffs. Defendant United stripped the equity which homeowners have worked to accumulate in their property solely for the profit of all Defendants. PARTIES AND VENUE 1. The Plaintiffs are Vincent Mark Polinka and Terri L. Polinka, adult individuals who are husband and wife, who reside at 829 Fairfield Street, Mechanicsburg, Cumberland County, Pennsylvania 17055. 2. Defendant United Medical Bank, FSB, is a federally chartered banking institution which operates a mortgage loan brokerage in Pennsylvania under its division called United Federal Mortgage, from an address of 2200 Georgetown Drive, Suite 201, Sewickley, PA 15143. 3. Defendant Deutsche Bank National Trust Company (hereinafter referred to as "Defendant Deutsche Bank") is a non-Pennsylvania entity which operates from its primary place of business at 60 Wall Street, 25th Floor, New York, NY 10005. 2 4. Defendant Deutsche Bank is presently the Trustee of an unidentified trust that currently is the assignee of the first mortgagee for the first mortgage between the Plaintiffs and Defendant United, and is named as a defendant so that the Plaintiffs can obtain the full relief they seek in this Complaint. 5. Defendant Bank of New York (hereinafter referred to as "Defendant BoNY"), is a non-Pennsylvania entity which, upon information and belief, operates from its primary place of business at One Wall Street, New York, NY. 6. Defendant BoNY is presently the Successor Trustee of an unidentified trust that is currently the assignee of the second mortgagee for the second mortgage between the Plaintiffs and Defendant United, and is named as a defendant so that the Plaintiffs can obtain the full relief they seek in this Complaint. 7. Most of the illegal acts complained of herein occurred at the Plaintiffs' residence, thereby making this court the proper venue for this action. FACTS AND BACKGROUND 8. In late October or early November, 2005, the Plaintiffs decided to refinance their existing first mortgage loan, as it had a high interest rate and a payment that was making it difficult for the Plaintiffs to pay their other bills. 9. At that time, the Plaintiffs received a mailed solicitation letter from Defendant United, which stated that Defendant United could lower a borrower's monthly payment from an existing mortgage loan. In response, Plaintiff Mark Polinka telephoned Chuck Marino, a vice-president of Defendant United, and spoke with him about possible refinancing terms. Mr. Polinka provided Mr. Marino with certain financial information. 3 10. The following day, Mr. Marino called the Plaintiffs and informed them that Defendant United could provide them with a loan that would have a monthly payment starting in the $500 range, then slightly increase each year for the first five years, at a fixed rate of interest of under 7%. 11. The Plaintiffs agreed to apply for the loan. They were eventually approved for a mortgage loan. 12. The Plaintiffs received certain documentation from Defendant United, but were never provided with disclosures or other documents that fully detailed the true nature of the loan. 13. Although they had not requested refinancing of an existing second mortgage, the Plaintiffs also received from Defendant United a package of documents relating to refinancing by Defendant United of their second mortgage loan. 14. Unless specified as to first mortgage loan or second mortgage loan, the term "loan transaction" use herein refers to both the first and second mortgage refinancings. 15. On or about the date of the loan closings, the Plaintiffs discovered for the first time that the first mortgage loan had an adjustable rate of interest that began at 9.950% and would adjust two months later. The loan rate would never go below the initial rate. 16. The first mortgage loan had a substantial prepayment penalty, which was not adequately disclosed until the time of closing. 17. The first mortgage loan had a reverse amortization feature, which was not adequately disclosed to the Plaintiffs. In fact, Plaintiffs never heard the term "reverse 4 amortization" until they had discussions with a loan servicer a month or two after the closing. 18. Prior to closing, the Plaintiffs discussed with Mr. Marino the fact that the monthly payments for the first five years would not cover all accrued monthly interest on the first mortgage loan. When they asked him how much interest would accumulate at the end of the reverse amortization period of five years, Mr. Marino told the Plaintiffs that the total accumulated interest would be approximately $6,000. 19. The Plaintiffs relied upon the aforesaid representation made by Mr. Marino is deciding to proceed with the transaction. 20. The representation as to the amount of accumulated interest was false, was known by Mr. Marino to be false at the time he made it, and was made to induce the Plaintiffs to proceed with the transaction. In fact, the amount of accumulated interest due to the negative amortization feature will be from $4,000 to $6,000 per ear, or approximately $20,000 to $30,000. 21. Had the Plaintiffs been properly and truthfully advised of the true nature of the terms of the first mortgage loan, they would not have consummated the transaction and entered into the mortgage loan. 22. The mortgage loans from Defendant United provide the Plaintiffs with no financial benefit. 23. As a result of the mortgage loan transaction, Defendant United has gained substantial financial benefit in the form of high loan fees and the accumulation of a high interest obligation. 24. Because of the presence of a prepayment penalty, which was not 5 disclosed to the Plaintiffs until the time of closing, they are unable to refinance to an appropriate mortgage loan. 25. By virtue of the fraud and deceptive conduct detailed above, the Plaintiffs seek various remedies, including rescission. As the Trustees for the current holders of the first and second mortgages, respectively, Defendants Deutsche Bank and BoNY are necessary parties to effectuate that relief. COUNT I Violation of the Consumer Protection Law 26. The averments of paragraphs 1 through 25 are incorporated herein by reference as if fully set forth. 27. The Plaintiffs entered into the loan transaction primarily for personal, family or household purposes. 28. At all times relevant hereto, Defendants were engaged in trade or commerce as defined in § 201-2(3) of the Consumer Protection Law, 73 P.S. § 201- 2(3). 29. Pursuant to § 201-9.2 of the Consumer Protection Law, the Plaintiffs aver that Defendant United's acts violate § 201-3 of the Consumer Protection Law, 73 P.S. § 201-3, by violating the following subsections of § 201-(4) of the Consumer Protection Law, 73 P.S. § 201-2(4): (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have; (vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; 6 (xxii) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 30. Plaintiffs reasonably relied upon the deceptive conduct of Defendant United in deciding to enter into the loan transaction, and did so to their detriment. 31. Defendant United failed to provide the Plaintiff with disclosures as required by the Truth in Lending Act, 15 U.S.C. § 1601, et seq., for the deceptive purpose of keeping Plaintiffs from knowing the true nature of the loan terms until after closing and their three-day rescission period had expired 32. The Plaintiffs relied upon Defendant United to treat them fairly and in accordance with all applicable laws. 33. As a result of Defendant United's violations of the Consumer Protection Law, Plaintiffs have suffered an ascertainable loss of money or property. WHEREFORE, Plaintiffs respectfully request this Honorable Court grant judgment in favor of Plaintiffs and against Defendants as follows: a) a judgment against Defendant United in the amount of three times the loss suffered by Plaintiffs as proven at trial of this matter; b) rescission of the transaction; c) an award of attorney's fees and all costs of Plaintiff against Defendant United; and, c) such other relief the court deems just and proper. COUNT II Fraud (Damages) 34. The averments of paragraphs 1 through 33 are incorporated herein by reference as if fully set forth. 7 35. Defendant United engaged in the aforesaid acts and failed to make required disclosures for the purpose of inducing the Plaintiffs to act to their detriment and to the benefit of Defendants. 36. Defendant United did so with knowledge of the falsity of its statements, intentionally and with reckless disregard for the rights and welfare of the Plaintiffs. 37. The Plaintiffs reasonably relied upon the misrepresentations and deceptive acts of Defendant United, and did so to their detriment. 38. As a result of the aforesaid acts, the Plaintiffs suffered actual damages. WHEREFORE, the Plaintiffs respectfully request this Honorable Court grant judgment in their favor and against Defendant United for actual damages, punitive damages, costs of this action, and such other relief the court deems just and proper. COUNT 111 Fraud (Rescission) 39. The averments of paragraphs 1 through 38 are incorporated herein by reference as if fully set forth. 40. As a result of the aforesaid fraud committed by Defendant United, the Plaintiffs entered into a loan transaction substantially different than as represented, and are therefore entitled to rescind the transaction with Defendants. WHEREFORE, the Plaintiffs demand judgment against Defendants, granting rescission of the loan transaction, and an award of restitution against Defendant United 8 for their loss suffered, plus punitive damages and costs against Defendant United. Date: 116 D Respectfully subm K. GEquire tt ney 2 0 Lingl wn Road, Suite 106 Harrisburg, PA 17110 (717)703-3600 Attorney for Plaintiffs 9 VERIFICATION I, V. Mark Polinka, hereby state that I have reviewed the foregoing Amended Complaint, and verify that the facts set forth in the document are true and correct to the best of my knowledge, information and belief; and that this statement is made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Dated:.3D 0(' V. MARK P LINKA CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the/6d ay of J , 2007, served a copy of the foregoing Plaintiff's Amended Complaint, by first-c ass mail, postage prepaid, upon the following: Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second floor Bryn Mawr, PA 19010 Attorney for Defendants Deutsche Bank National Trust Company and David B. Banks, Esquire Banks & Banks 3038 Church Road Lafayette Hill, PA 19444 Attorney for Defendant United Medical Bank, FSB ? f - 3 I I FD 2 BANKS & BANKS BY: DAVID BANKS, ESQUIRE IDENTIFICATION NO. 57018 3038 CHURCH ROAD LAFAYETTE HILL, PA 19444 (610) 940-3900 TO: PLAINTIFFS You are hereby notified to response to the enclose within twenty (20) s or a judgment y ent4 a service hereof 1 against you. ATTORNEY)F9111 DEFENDANT UNITED MEDICAL 11 K, FSB IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI CIVIL TERM (LAW) L. POLINKA, Plaintiffs NO. 06-6136 V. JURY TRIAL DEMANDED UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, Defendants DEFENDANT UNITED MEDICAL BANK, FSB'S ANSWER AND NEW MATTER Defendant, United Medical Bank, FSB ("United Bank") by its attorney, David Banks of Banks & Banks, submits the following Answer and New Matter in opposition to the Amended Complaint of plaintiffs Vincent Mark Polinka and Terri L. Polinka: ANSWER INTRODUCTION Denied. To the contrary, this is a groundless and frivolous lawsuit filed by borrowers in a vain attempt to rewrite the loan transaction. FACTUAL ALLEGATIONS 1. Admitted. 1 L t 2. Denied. This allegation is denied as a conclusion of law to which no responsive pleading is required. By way of further answer, at the time of the loan transaction United Bank was a federally chartered Savings and Loan that operated a mortgage brokerage division. 3. Denied. After reasonable investigation, United Bank lacks sufficient knowledge and information to respond to this averment. 4. Denied. After reasonable investigation, United Bank lacks sufficient knowledge and information to respond to this averment. 5. Denied. After reasonable investigation, United Bank lacks sufficient knowledge and information to respond to this averment. 6. Denied. After reasonable investigation, United Bank lacks sufficient knowledge and information to respond to this averment. 7. Denied. It is denied that any "illegal acts" took place in connection with this loan transaction. This allegation is also denied as a conclusion of law to which no responsive pleading is required. 8. Denied. After reasonable investigation, United Bank lacks sufficient knowledge and information to respond to this averment. 9. Admitted. 10. Admitted in part; denied in part. It is admitted that Mr. Marino called the plaintiffs and informed them that United Bank could provide them with a loan. The remaining allegations in this paragraph are denied. 11. Admitted. 12. Admitted in part; denied in part. It is admitted that on November 8, 2005 United Bank sent by overnight mail certain documents. The documents sent by United Bank included all 2 required disclosures. It is denied that plaintiffs were not provided with disclosures or other documents that fully detailed the true nature of the loan. 13. Admitted in part; denied in part. It is admitted that United Bank sent documents to plaintiffs relating to the refinancing of their second mortgage loan. The remaining allegations in this paragraph are denied. 14. No allegation is contained in paragraph 14. 15. Denied. At all relevant times, plaintiff knew or should have known that the first mortgage loan had an adjustable rate of interest. It is further denied that the interest rate began at 9.950%. 16. Admitted in part; denied in part. It is admitted that the first mortgage loan had a prepayment penalty that was at a market rate. It is denied that the prepayment penalty was not adequately disclosed until the time of closing. 17. Admitted in part; denied in part. It is admitted that the first mortgage loan had a reverse amortization feature. It is denied that the reverse amortization feature was not adequately disclosed. After reasonable investigation, United Bank lacks sufficient knowledge and information to respond to the allegation as to when plaintiffs first heard of the term "reverse amortization." 18. Admitted in part; denied in part. It is admitted that prior to closing, plaintiffs discussed with Mr. Marino the fact that the minimum monthly payments for the first five years would not cover all accrued monthly interest on the first mortgage loan. It is denied that Mr. Marino told plaintiffs that the accumulated interest due at the end of the five year period would be approximately $6,000.00. 19. Denied. After reasonable investigation, United Bank lacks sufficient knowledge and information as to what plaintiffs relied upon. 3 M 20. Denied. It is denied that Mr. Marino made any false representations concerning the amount of accumulated interest that would be due at the end of the five-year period. 21. Denied. To the contrary, plaintiffs were properly and truthfully advised of the true nature of the terms of the first mortgage loan. 22. Denied. After reasonable investigation, United Bank lacks sufficient knowledge and information as to the financial benefit of the loan transaction for plaintiffs. 23. Denied. It is denied that United Bank has gained "substantial benefit" in the form of high loan fees and the accumulation of a high interest obligation. To the contrary, the loan fees and interest obligation were charged within industry standards. 24. Denied. The prepayment penalty was disclosed to plaintiffs prior to closing. After reasonable investigation, United Bank lacks sufficient knowledge and information as to why plaintiff cannot refinance or if they have even tried to refinance. 25. Denied. These allegations are conclusions of law to which no responsive pleading is required. 25. United Bank incorporates herein its responses in paragraphs 1-25. 27. Denied. After reasonable investigation, United Bank lacks sufficient knowledge and information to respond to the allegations in this paragraph. This allegation is also denied as a conclusion of law to which no responsive pleading is required. 28. Denied. The allegation in this paragraph is denied as a conclusion of law to which no responsive pleading is required. 29. Denied. The allegation in this paragraph is denied as a conclusion of law to which no responsive pleading is required. 30. Denied. United Bank denies it engaged in any deceptive conduct. 4 x 31. Denied. To the contrary, United Bank provided plaintiffs with all disclosures required by 15 U.S.C. § 1601, et sue. It is also denied that United Bank engaged in any deceptive conduct. The allegations of this paragraph are also denied as conclusions of law to which no responsive pleading is required. 32. Denied. To the contrary, United Bank treated plaintiffs fairly and in accordance with applicable laws. 33. Denied. The allegation in this paragraph is denied as a conclusion of law to which no responsive pleading is required. WHEREFORE, United Bank requests that plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in its favor. 34. United Bank incorporates herein its responses in paragraphs 1-33. 35. Denied. The allegation in this paragraph is denied as a conclusion of law to which no responsive pleading is required. By way of further answer, United Bank provided plaintiffs with all required disclosures. 36. Denied. The allegation in this paragraph is denied as a conclusion of law to which no responsive pleading is required. 37. Denied. The allegation in this paragraph is denied as a conclusion of law to which no responsive pleading is required. 38. Denied. The allegation in this paragraph is denied as a conclusion of law to which no responsive pleading is required. WHEREFORE, United Bank requests that plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in its favor. 39. United Bank incorporates herein its responses in paragraphs 1-38. 5 4 ) 40. Denied. The allegation in this paragraph is denied as a conclusion of law to which no responsive pleading is required. WHEREFORE, United Bank requests that plaintiffs' Complaint be dismissed with prejudice and that judgment be entered in its favor. NEW MATTER 41. United Bank incorporates herein its responses in paragraphs 1-40. 42. Plaintiffs were provided all material notices and disclosures required by law in connection with the loan transaction in question. Therefore, Plaintiffs are not entitled to any relief or damages requested in the Complaint, including attorneys' fees and costs. 43. Plaintiffs' accepted the loan terms offered by United Bank. 44. While United Bank denies any liability whatsoever, in the event that the claims and averments of the Complaint are established by competent evidence at trial or by the Court, then United Bank avers that other entities or persons are solely liable to Plaintiffs, or are liable over to United Bank for any sums adjudged against United Bank, jointly or severally and/or are liable to United Bank for contribution and/or indemnity. 45. United Bank discharged any and all of its duties and responsibilities in connection with the subject loan lawfully, completely and in good faith. 46. Plaintiffs were provided with all the requisite notices and disclosures relating to the subject loan transaction. 47. On December 10, 2005, Plaintiffs received and signed a Prepayment Rider, which clearly, conspicuously and accurately discloses, among other things, that there is a prepayment charge in the first 36 months after closing with respect to the first mortgage loan transaction. See Exhibit "A" hereto. 6 11 48. In addition, on December 10, 2005, plaintiffs received and signed a Prepayment Addendum to Note, which reiterated the terms of the Prepayment Rider. See Exhibit "B" attached hereto. 49. On December 10, 2005, plaintiffs received and signed an Adjustable Rate Mortgage Loan Program Disclosure, which clearly and unambiguously described the payment options in connection with the first mortgage loan and disclosed that the "balance of your loan could increase." This is known as negative amortization. See Exhibit "C". 50. In addition, on December 10, 2005, plaintiffs received and signed an Adjustable Rate Note in connection with the first mortgage loan that clearly and unambiguously describes the payment with respect to the loan. See Exhibit "D". 51. Plaintiffs signed and dated a Notice of Right to Cancel (hereinafter "Rescission Notice") on December 10, 2005 with respect to both mortgage transactions. See Exhibits "E" and "F". 52. Plaintiffs right to cancel/rescind the loan transaction has expired. 53. Plaintiffs did not exercise their right to cancel the loan transaction within the time period provided in the Rescission Notice. 54. Plaintiffs are not entitled to rescind the loan transaction. 55. The loan transaction is not subject to rescission. 56. The avoidance of the liens arising from this transaction would be inequitable. 57. The avoidance or rescission of the liens arising from this transaction is not permitted as a matter of law. 58. In the event that rescission of the loan transaction was awarded by the Court, said rescission must be conditioned on plaintiffs' prior tender the entire original amount lent to debtor in connection with the loan transaction. 7 59. United Bank obtained the legitimate, meaningful consent of Plaintiffs regarding the terms of the loan transaction. 60. At all times relevant hereto, United Bank acted pursuant to the terms and conditions of the loan transaction. 61. The terms of the loan transaction reflect a bargained-for exchange. 62. All fees and charges assessed against Plaintiffs are reasonable, appropriate under state and federal law and authorized pursuant to the agreements between the parties. 63. United Bank did not make any misrepresentations, intentional or otherwise, concerning the terms and conditions of the United Bank loan transaction. 64. United Bank made all required disclosures regarding the loan transaction. 65. United Bank did not act with fraudulent intent or commit any fraud in connection with the loan transaction. 66. At all times relevant hereto, United Bank accurately represented the character, extent and amount of the debt and its status to Plaintiffs. 67. Plaintiffs fail to state any claims for relief against United Bank in their Complaint. 68. Plaintiffs have not suffered any damage and are not entitled to any damages under any state or federal statute or common law. 69. Any actions or inactions by United Bank are not the proximate or actual cause of any alleged harm suffered by Plaintiffs. 70. The alleged harm suffered by Plaintiffs, if any, are the result of their own actions, inactions, decisions and/or negligence. 71. The claims in Plaintiffs' Complaint are barred by the economic loss doctrine. 72. The claims in Plaintiffs' Complaint are barred by the gist of the action doctrine. 73. The claims in Plaintiffs' Complaint are barred by the doctrine of laches. 8 k 74. The claims in Plaintiffs' Complaint are barred by the doctrines of waiver and/or estoppel. 75. Plaintiffs have failed to mitigate their damages, if any. 76. The Court lacks subject matter jurisdiction over the matter. 77. The claims in Plaintiffs' Complaint are barred by the doctrine of unclean hands. 78. The claims in Plaintiffs' Complaint are barred by the doctrine of accord and satisfaction. 79. The claims in Plaintiffs' Complaint are barred by the doctrine of justification. 80. The claims in Plaintiffs' Complaint are barred by the doctrine of collateral estoppel. 81. The claims in Plaintiffs' Complaint are barred by the doctrine of comprise and settlement. 82. The claims in Plaintiffs' Complaint are barred by the doctrine of avoidable consequences. 83. The claims in Plaintiffs' Complaint are barred by the doctrine of acquiescence. 84. The claims in Plaintiffs' Complaint are barred by the doctrine of release. 85. The claims in Plaintiffs' Complaint are barred by the statute of frauds. i 86. The Complaint fails to state a claim upon which relief can be granted. WHEREFORE, United Bank requests that plaintiffs' Complaint be dismissed w' prejudice and that judgment be entered in its favor. BANKS BY: anks, Esquire 9 VERIFICATION I, Andrew Blair, certify that I am an authorized representative of United Medical Bank, FSB, a defendant in the foregoing matter, and that the facts set forth in the foregoing pleadings are true and correct to the best of my knowledge, information and belief. I understand that the statements herein contained are made subject to the penalties of 18 PA C.S. Section 4904 relating to the unsworn falsification to authorities. By: Title: wDcZe-J '? s;Q? EXHIBIT "A" ! 0 PREPAYMENT RIDER Loan Number: 15428 Data: DECEMBER 10, 2005 Borrower(s): V. MARK POLINKA, TERRI L. POLINKA THIS PREPAYMENT RIDER (the "Rider") is made this 10th day of DECEMBER 2005 , and is incorporated into and shall be deemed to amend and supplement the Mortgage, Deed of Trust or Security Deed (the "Security Instrument") of the same date given by the undersigned ("Borrower") to secure repayment of Borrower's promissory note (the "Note") in favor of UNITED MEDICAL BANK, FSB ("Lender'. The Security Instrument encumbers the Property more specifically descnW in the Security Instrument and located at 829 FAIRFIELD STREET, MECHANICSBURG, PENNSYLVANIA 17055 (PM" Add-] ADDITIONAL COVENANTS. In addition to the covenants and agreements made in the Security Instrument, Borrower and Lender further covenant and agree as follows: A. PREPAYMENT CHARGE The Note provides for the payment of a prepayment charge as follows: 5 . BORROWER'S RIGHT TO PREPAY; PREPAYMENT CHARGE I have the right to make payments of Principal at any time before they are due. A payment of Principal only is known as a "Prepayment." When I make a Prepayment, I will tell the Note Holder in writing that I am doing so. I may not designate a payment as a Prepayment if I have not made all the monthly payments due under the Note. The Note Holder will use my Prepayments to reduce the amount of Principal that I owe under the Note. However, the Note Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount, before applying my Prepayment to reduce the Principal amount of the Note. If I make a partial Prepayment, there will be no changes in the due dates of my monthly payment unless the Note Holder agrees in writing to those changes. If the Note contains provisions for a variable interest rate, my partial Prepayment may reduce the amount of my monthly payments after the first Change Date following my partial Prepayment. However, any reduction due to my partial Prepayment may be offset by an interest rate increase. If this Note provides for a variable interest rate or finance charge, and the interest rate or finance charge at any time exceeds the legal limit under MULTISTATE PREPAYMENT RIDER DorlYtaq) eV== 80044943e2 6103 Pape 1 of 2 www.doemagic.cow. Uepr.ppl.I.im • ''_ • which a Prepayment penalty is allowed, then the Note Holder's right to assess a Prepayment penalty will be determined under applicable law. If within THIRTY-SIX ( 36 ) months from the date the Security Instrument is executed I make a full Prepayment or one or more partial Prepayments, and the total of all such Prepayments in any 12-month period exceeds twenty percent (20%) of the original Principal amount of the loan, I will pay a Prepayment charge in an amount equal to SIX ( 6 ) months' advance interest on the amount by which the total of my Prepayments within any 12-month period exceeds twenty percent (20%) of the original Principal amount of the loan. BY SIGNING BELOW, Borrower accepts and agrees to the terms and provisions contained in this Rider. (Seal) V. POLINKA -Borrower (Seal) TERRI L. POLINKA -Borrower (Seal) -Borrower (Seal) -Borrower - (Seal) -Borrower _ (Seal) -Borrower MULTISTATE PREPAYMENT RIDER DodNeytcHRn M 804649-1362 6103 Pape 2 of 2 www.doemighLV0M UnPr.PPL2.1- Exhibit "A" ALL THAT CERTAIN tract or parcel of land situate in Monroe Township, Cumberland County, Pennsylvania, more particularly bounded and described as follows, to wit: BEGINNING at a point at the Southeasterly comer of Wertz Avenue and Fairfield Street; thence along the Southerly line of Fairfield Street, North 69 degrees 30 minutes East 92 feet to a point at a dividing line between Lots Nos. 5 and 6 on the hereinafter mentioned Plan of Lots; thence along said dividing line South 22 degrees 39 minutes East 143.5 feet to a point at a dividing line between Lots Nos. 5 and 13 on said Plan thence along said dividing line, South 70 degrees 2 minutes West 123 feet to a point on the Easterly line of Wertz Avenue aforesaid; thence along same North 19 degrees 58 minutes West 57.07 feet to a point; thence further along same in an arc having a radius of 160 feet to the right in a Northerly direction 73.12 feet to a point; thence further along same North 6 degrees 13 minutes East 17.69 feet to a point, the place of the BEGINNING. HAVING THEREON ERECTED a dwelling known and numbered as 829 West Fairfield Street, Mechanicsburg, Pennsylvania. BEING Lot No. 5, in Plan of Trindle Spring Manor, which Plan is recorded in the Office of the Recorder of Deeds in Cumberland County in Plan Book 10, Page 5. BEING the same premises which Ronald C. Cashman and Mary A. Cashman, his wife, by Deed dated August 18, 1986, and recorded August 19, 1986, in Book C-32, Page 779, granted and conveyed unto V. Mark Polinka and Terri L. Polinka, his wife, in fee. For Informational purposes Only: PARCEL ID #: 22-24-0783-059 ADDRESS: 829 Fairfield Street, Mechanicsburg, PA 117065 EXHIBIT "B" 0 0 %NW PREPAYMENT ADDENDUM TO NOTE Loan Number: 15428 Date: DECEMBER 10, 2005 Borrower(s):V. MARK POLINKA, TERRI L. POLINKA THIS PREPAYMENT ADDENDUM TO NOTE (the "Addendum's is made this 10th day of DECEMBER, 2005 , and is incorporated into and shall be deemed to amend and supplement that certain promissory note (the "Note") made by the undersigned ("Borrower') in favor of UNITED MEDICAL BANK, FSB ("Lender') and dated the same date as this Addendum. Repayment of the Note is secured by a Mortgage, Deed of Trost, or Security Deed (the "Security Instrument") given by Borrower in favor of Lender and dated the same date as this Addendum. To the extent that the provisions of this Addendum are inconsistent with the provisions of the Note, the provisions of this Addendum shall supersede the inconsistent provisions of the Note. ADDITIONAL COVENANTS. In addition to the covenants and agreements made in the Note, Borrower and Lender further covenant and agree as follows: Section 5 of the Note is amended to read in its entirety as follows: 5 . BORROWER'S RIGHT TO PREPAY; PREPAYMENT CHARGE I have the right to make payments of Principal at any time before they are due. A payment of Principal only is mown as a "Prepayment." When I make a Prepayment, 1 will tell the Note Holder in writing that I am doing so. I may not designate a payment as a Prepayment if I have not trade all the monthly payments due under the Note. The Note Holder will use my Prepayments to reduce the amount of Principal that I owe under the Note. However, the Note Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount, before applying my Prepayment to reduce the Principal amount of the Note. If I make a partial Prepayment, there will be no changes in the due dates of my monthly payment unless the Note Holder agrees in writing to those changes. If the Note contains provisions for a variable interest rate, my partial Prepayment may reduce the amount of my monthly payments after the first Mange Date following my partial Prepayment. However, any reduction due to my partial Prepayment may be offset by an interest rate increase. If this Note provides for a variable interest rate or finance charge, and the interest rate or finance charge at any time exceeds the legal limit under which a Prepayment penalty is allowed, then the Note Holder's right to assess a Prepayment penalty will be determined under applicable law. If within THIRTY- SIX( 36 ) months from the date the Security Instrument is executed I make a full Prepayment or one or more partial Prepayments, and the total of all such Prepayments in any 12-monthperiod exceeds twenty percent (20%) of the original Principal amount of the loan, I will pay a Prepayment charge in an amount equal to six ( 6 ) months' advance interest on the amount by which the total of my Prepayments within any 12-month period exceeds twenty percent (20%) of the original Principal amount of the loan. MULTISTATE PREPAYMENT ADDENDUM TO NOTE DodNag 4W%VNW aoo'649"11e2 6103 Pape 1 of 2 www.doem"k.com Uspm.W.3.1m, • • BY SIGNING BELOW, Borrower accepts and agrees to the terms and provisions contained in this Addendum. J -a Id -4all yl?lf o MARK POLINKA ate BorrowerTERRI L. POLINKA Date Borrower Date Borrower Date Borrower Date Borrower Date MULTISTATE PREPAYMENT ADDENDUM TO NOTE DocM d%ftiM= eoo.ew•rses 6/03 Page 2 of 2 www.doemagk,oom U.P"W.].t EXHIBIT "C" DATE: DECEMBER 10, 2005 BORROWER:V. MARK POLINKA, TERRI L. POLINKA CASE #: LOAN #: 15428 PROPERTY ADDRESS: 829 FAIRFIELD STREET, MECHANICSBURG, PENNSYLVANIA 17055 ADJUSTABLE RATE MORTGAGE LOAN PROGRAM DISCLOSURE MONTHLY TREASURY AVERAGE INDEX - PAYMENT CAPS ALL STATES EXCEPT NEW YORK This disclosure describes the features of an Adjustable Rate Mortgage (ARM) program you are considering, Information about our other ARM programs will be provided upon request. • Your interest rate will be based on an Index rate plus a margin. Please ask us for our current interest rate and margin. • The "Index" is the 'Twelve-Month Average' of the annual yields on actively traded United States Treasury Securities adjusted to a constant maturity of one year as published by the Federal Reserve Board in the Federal Reserve Statistical Release entiiited "Selected Interest Rates (1-115)" (the "Monthly Yields"). The Twelve Month Average is determined by adding together the Monthly Yields for the most recently available twelve months and dividing by 12. • Your initial interest rate is not based on the index used to make later adjustments. Please ask us for the amounts of our current interest rate discounts, • For the first year of your loan, your payment will be based on the initial interest rate, loan amount and loan term. After the first year, your payment will be calculated as described below. Your Interest rate can On your first payment date and monthly thereafter On your 3rd payment date and monthly thereafter change: Each time your In Interest rate changes, • Your interest rate will be rounded to the nearest 118%. the new interest rate will equal the sum of • Your Interest rate will never exceed the maximum set forth in your loan documents. the index plus the The maximum rate in effect as of the first business, day of January 2005 is 9.95%. Please ask us margin, subject to the for our current maximum rate. following limits: r` Your payment can . Every year and can Increase or decrease substantially based on changes in the interest rate. change: • At every 5'" scheduled payment adjustment, you will need to pay the Full Payment until the next payment adjustment date. You will be notified in writing at least 25, but no more than 120 days, before the due date of a payment at a new level. This notice will contain information about the index, your interest rates,. payment amount and loan balance. Your payment will Beginning with the 13th payment and every 12 months thereafter, we will calculate the amount of be calculated as the monthly payment that would be sufficient to repay the unpaid principal balance in full by the follows: maturity date in substantially equal payments at the interest rate in effect during the month preceding the payment change date. This payment is called the "Full Payment." Except as otherwise provided, your "Limited Payment" will be the payment amount for the month preceding the payment change date increased by no more than 7,5% ("Payment Cap"I• Your new "Minimum Payment" will be the lesser of the Limited Payment and the Full Payment. You also have the option to pay the Full Payment for your monthly payment. If you pay less than the Full Payment, then the payment may not be enough to cover the interest due, and any difference will be added to your principal balance. This means the balance of,your loan could increase. This is known as "negative amortization." During the loan term, we may provide you with other monthly payment options that are greater than the Minimum Payment ("Payment Options"). Please ask us about these Payment Options. The unpaid principal Can never exceed 115% (110% in New York) of the original amount borrowed. This means that your of your loan: monthly payment may change more frequently than annually and the payment change will not be limited by the 7.5% Payment Cap. The new Minimum Payment will be in an amount that would be sufficient to pay off the unpaid principal balance over the remaining life of the loan at the current interest rate. The examples below illustrate interest rate and payment changes based on a $10,000, 30-year loan. These examples use an initial interest rate in effect for a 30 year loan on the first business day of January 2005, and assume the maximum periodic increases in rates and payments. This program may also be available with a 40 year term. ` Initial Interest Rate ..?:.y .. .. .. .. „..:. 1.00% : > 1. 1.75% Maximum Interest Rata 9.95% 9.95% First Year Payment $32.16 $35.72 Maximum payment $101.46 in the 3rdyear $102.14 in the 3rd year • ARM MTA PsyOption Disclosure FE-4273 10606) Page t .1 2 D4273t.c" 0 • 1 d ; Initial Interest Rate NIA N/A Maximum Interest Rate N/A N/A First Year Payment N/A N/A Maximum payment N/A N/A NOTE: To see what your payment would be, divide your mortgage amount by $10,000, then multiply the monthly payment by that amount, (For example, the monthly payment for a 30 year 960,000 MTA ARM Index - Payment Cap loan with a discounted Interest rate would be: $60,000 / $10,000 - 6; 6 x 532.16 =3192.96 per month) oD Applioant V . MARK POLINKA Dato ?? -? ,r /a?df o S Applicant TERRI L. POLINKA Date Applicant Applicant • ARM MTA PayOption Disclosure FE-0273 (osm) Page 2 of 2 Date Date D42732 - EXHIBIT "D" MIN: 1001447-2005000323-3 Loan Number: 15428 ADJUSTABLE RATE NOTE TM NOTE CONTAINS PROVISIONS THAT WILL CHANGE THE INTEREST RATE AND THE MONTHLY PAYMENT. THERE MAY BE A LIMIT ON THE AMOUNT THA THE MONTHLY PAYMENT CAN INCREASE. THE PRINCIPAL AMOUNT COULD BE GREATER THAN THE AMOUNT ORIGINALLY BORRO T MORE THAN THE LIMIT STATED IN THIS NOTE. DECEMBER 10, 2005 ROCKVIL YLAN [Duel [Carl Istatel 829 FAIRFIELD STREET, MECHANICSBURG, VMNSYLVANIA 17055 (Property AMr-I 1. BORROWER'S PROMISE TO PAY In return for a loan that I have received, I promise to pay U.S. $ 18 3, 0 0 0 .0 0 (this amount is called "Principal), plus interest, to the order of Lender. Lender is UNITED MEDICAL BANK, FSB 1 will make all payments under this Note in the form of cash, check or money order. I understand that Lender may transfer this Note. Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder." 2. INTEREST (A) Interest Rate Interest will be charged on unpaid principal until the full amount of Principal has been paid. I will pay interest at a yearly rate of 1.000 %. The interest rate I will pay may change. The interest rate required by this Section 2 is the rate I will pay both before and after any default described in. Section 7(B) of this Note. (B) Interest Rate Change Dates The interest rate I will pay may change on the 1 B t day of FEBRUARY,. 2 0 0 6 and on that day every month thereafter. Each date on which my interest rate could change is called an "Interest Rate Change Date." The new rate of interest will become effective on each Interest Rate Change Date. (C) Interest Rate Limit My interest rate will never be greater than 9.950 % (D) Index Beginning with the first Interest Rate Change Date, the adjustable interest rate will be based on an Index. The "Index" is the "Twelve-Month Average" of the annual yields on actively traded United States Treasury Securities adjusted to a constant maturity of one year as published by the Federal Reserve Board in the Federal Reserve Statistical Release entitled "Selected Interest Rates (h.15)" (the "Monthly Yields"). The Twelve Month Average is determined by adding together the Monthly Yields for the most recently available twelve months and dividing by 12. The most recent Index figure available as of the date 15 days before each Interest Rate Change Date is called the "Current Index." If the Index is no longer available, the Note Holder will choose a new index that is based upon comparable information. The Note Holder will give me notice of this choice. (E) Calculation of Interest Rate Changes Before each Interest Rate Change Date, the Note Holder will calculate the new interest rate by adding THREE AND 450/1000 percentage point(s) ( 3 .4 5 0 %) to the Current Index. The Note Holder will then round the result of this addition to the nearest one-eighth of one percentage point MULTISTATE ADJUSTABLE RATE NOTE • MTA DOC 4SOC JVFSVp= 800408.1382 RFC FORM 3524 (1/01) MODIFIED INSTRUMENT Pape 1 01 5 www.doemlgk.com WSUM.,toAAM (0,125 %). Subject to the limit stated in Section 2(C) above, the result of this addition will be the new interest rate until the next Interest Rate Change Date. 3. PAYMENTS (A) Time and Place of Payments I will pay principal and interest by mating a payment every month. I will make my monthly payments ou the 1st day of each month beginning on FEBRUARY 1 2006 , I will make these payments every month until I have paid all the principal and interest and any other charges described below that I may owe under this Note. Each monthly payment will be applied as of its scheduled due date and will be applied to interest before Principal. If, on JANUARY 1, 2 0 3 6 , I still owe amounts udder this Note, I will pay those amounts in full on that date, which is called the "Maturity Date," I will make my montilly payments at 800 KING FARM BLVD . , 3RD FLOOR MS#5519, ROCKVILLE, MARYLAND 20850 or at a different place if required by the Note Hoiden. (B) Amount of My Initial Monthly Payments Each of my initial monthly payments will be in the amount of U.S. $ 58 8 .6 0 This amount may change. (C) Payment Change Dates My monthly payment may change as required by Section 3(D) below beginning on the 1St day of FEBRUARY, 2007 , and on that day every 12 th month thereafter. Each of these data is called a "Payment Change Date," My monthly payment also will change at any time Section 3(I) or 3(G) below requires me to pay a different monthly payment. I will pay the amount of my new monthly payment each month beginning on each Payment Change Date or as provided in Section 3(P) or 3(G) below. (D) Calculation of Monthly Payment Changes Before each Payment Change Date, the Note Holder will calculate the amount of the monthly payment that would be sufficient to repay the unpaid principal that I am expected to owe at the Payment Change Date in full on the Maturity Date in substantially equal installments at the interest rate effective during the month preceding the Payment Change Date. The result of this calculation is called the "Pull Payment." Unless Section 3(F) or 3(G) below requires me to pay a different amount, my new monthly payment will be in the amount of the Full Payment, except that my new monthly payment will be limited to an amount that will not be more than 7.5 % greater than the amount of my last monthly payment due before the Payment Change Date. (E) Additions to My Unpaid Principal My monthly payment could be less than the amount of the interest portion of the monthly payment that would be sufficient to repay the unpaid principal I owe at the monthly payment date in full on the Maturity Date in substantially equal payments. If so, each month that my monthly payment is less than the interest portion, the Note Holder will subtract the amount of my monthly payment from the amount of the interest portion and will add the difference to my unpaid principal. The Note Holder also will add interest on the amount of this difference to my unpaid principal each month. The interest rate on the interest added to Principal will be the rate required by Section. 2 above. (F) Limit on My Unpaid Principal; Increased Monthly Payment The unpaid principal can never exceed a maximum amount equal to 735.000 % of the Principal amount I originally borrowed. Because of my paying only limited monthly payments, the addition of unpaid interest to my unpaid principal under Section 3(L) above could cause my unpaid principal to exceed that maximum amount when interest rates increase. In that event, on the date that my paying my monthly payment would cause me to exceed that limit, I will instead pay a new monthly payment. The new monthly payment will be in an amount that would be sufficient to repay my then unpaid principal in full on the Maturity Date in substantially equal installments at the interest rate effective during the preceding month. MULTISTATE ADJUSTABLE RATE NOTE - MTA DoeAfeglc QLSoMW 80"40-1561 RFC FORM 3524 (1/01) MODIFIED INSTRUMENT Page 2 of 5 www.doawaglacom U45524m&Ija„ (G) Required Fail Payment On the fifth Payment Change Date and on each succeeding fifth Payment Change Date thereafter, I will begin paying the Pull Payment as my monthly payment until my monthly payer changes again. I also will begin paying the Pull Payment as my monthly payment on the final Payment Change Date. 4. NOTICE OF CHANGES The Note Holder will deliver or mail to me a notice of any changes in the amount of my monthly payment before the effective date of any change. The notice will include information required by law to be given to me and also the title and telephone number of a person who will answer any question I may have regarding the notice. 5. BORROWER'S RIGHT TO PREPAY** See attached Prepayment Note Addendmi. I have the right to make payments of Principal at any time before they are due. A payment of Principal only is (mown as a "Prepayment." When 1 make a Prepayment, I will tell the Note Holder in writing that I am doing so. I may not designate a payment as a Prepayment if I have not made all the monthly payments due under this Note. I may make a full Prepayment or partial Prepayments without paying any Prepayment charge. The Note Holder will use my Prepayments to reduce the amount of Principal that I owe under this Note. However, the Note Holder may apply my Prepayment to the accrued and unpaid interest on the Prepayment amount before applying my Prepayment to reduce the Principal amount of this Note. If I make a partial Prepayment, there will be no changes in the due dates of my monthly payments unless the Note Holder agrees in writing to those changes. My partial Prepayment may reduce the amount of my monthly payments after the first Payment Change Date following my partial Prepayment. However, any reduction due to my partial Prepayment may be offset by an interest rate increase. 6. LOAN CHARGES If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (b) any sums already collected form me that exceeded permitted limits will be refunded tome. The Note Holder may choose to make this refund by reducing the Principal I owe under this Note or by making a direct payment to me. If a refund reduces Principal, the reduction will be treated as a partial Prepayment. 7. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charges for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date it is due, I will paya late charge to the Note Holder. The amount of the charge will be 5.0 0 0 % of my overdue payment of principal and interest. I will pay this late charge promptly but only once on each late payment. (B) Default If I do not pay the full amount of each monthly payment on the date it is due, I will be in default. (C) Notice of Default If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of Principal that has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is mailed to me or delivered by other means. (D) No Walver By Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time. (E) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. These expenses include, for example, reasonable attorneys' fees. MULTISTATE ADJUSTABLE RATE NOTE - MTA Dowegic WW" 800449.13e2 RFC FORM 3524 (1/01) MODIFIED INSTRUMENT Page 3 of 5 www.doemyle.com UMUM O.Wm S. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a different address if I give the Note Holder a notice of my different address. Unless the Note Holder requires a different method, any notice that must be given to the Note Holder under this-Note-will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if I am given a notice of that different address. 9. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all the amounts owed under this Note. 10. WAIVERS I and any other person who has obligations under this Note waive the rights of Presentment and Notice of Dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of Dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. 11. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust, or Security Deed (the "Security Instrument") I dated the same date as this Note, protects the Note Holder from possible losses that might result if I do not keep the promises that I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note. • Some of these conditions read as follows: Transfer of the Property or a Beneficial Interest In Borrower. As used in this Section 18, "Interest in the Property" means any legal or beneficial interest in the Property, including, but not limited to, those beneficial interests transferred in a bond for deed, contract for deed, installment sales contract or escrow agreement, the intent of which is the transfer of title by Borrower at a future date to a purchaser. If all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender's prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law. Lender also shall not exercise this option if. (a) Borrower causes to be submitted to Lender information required by Lender to evaluate the intended transferee as if a new loan were being made to the transferee; and (b) Lender reasonably determines that Lender's security will notb impaired by the loan assumption and that the risk of a breach of any covenant or agreement in this Security Instrument is acceptable to Lender. To the extent permitted by Applicable Law, Lender may charge a reasonable fee as a condition to Lender's consent to the loan assumption. Lender also may require the transferee to sign an assumption agreement that is acceptable to Lender and that obligates the transferee to keep all the promises and agreements made in the Note and in this Security Instrument. Borrower will continue to be obligated under the Note and this Security Instrument unless Lender releases Borrower in writing. MULTISTATE ADJUSTABLE RATE NOTE . MTA Docusgic 6o}649•f362 RFC FORM 3524 (1101) MODIFIED INSTRUMENT Page 4 of 5 www.dovmagk.com U9352AMrk A.Im, -, If Lender exercises the option to require immediate payment in full, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is given in accordance with Section 15 within which Borrower must pay.ali sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED. (Seal) V. K POLINKA -Borrower - (Seal) -Borrower (Seal) -Borrower wrisom REIBOURSE PAV I'O "M ORDER OF iJ1VITED 7AL Ce i<x Frt idmt _ (Seal) -Borrower (Seal) -Borrower (Sign Original Only) MULTISTATE ADJUSTABLE RATE NOTE - MTA DocNagio tVWV Oa 60P649-1362 RFC FORM 3524 (1/01) MODIFIED INSTRUMENT Page 5 of 5 www.docmagk.com -p . (Seal) TERRI L. POLINKA -Borrower EXHIBIT "E" NOTICE OF RIGHT TO CANCEL Loan Number: 154 2 8 Borrowers: V. MARK POLINKA, TERRI L. POLINKA Property Address: 829 FAIRFIELD STREET, MECHANICSBURG, PENNSYLVANIA 17055 YOUR RIGHT TO CANCEL You are entering into a transaction that will result in a mortgage, lien or security interest on or in your home. You have a legal right under federal law to cancel this transaction, without cost, within three business days from whichever of the following events occurs last: 1. the date of the transaction, which is DECEMBER 10 , 2 0 0 5 ; or 2. the date you receive your Truth in Lending disclosures; or 3. the date you receive this notice of your right to cancel. If you cancel the transaction, the mortgage, lien or security interest is also cancelled. Within 20 calendar days after we receive your notice, we must take the steps necessary to reflect the fact that the mortgage, lien or security interest on or in your home has been cancelled, and we must return to you any money or property you have given to us or to anyone else in connection with this transaction. You may keep any money or property we have given you until we have done the things mentioned above, but you must then offer to return the money or property. If it is impractical or unfair for you to return the property, you must offer its reasonable value. You may offer to return the property at your home or at the location of the property. Money must be returned to the address below. If we do not take possession of the money or property within 20 calendar days of your offer, you may keep it without further obligation. HOW TO CANCEL If you decide to cancel this transaction, you may do so by notifying us in writing, at UNITED MEDICAL BANK, FSB 800 KING FARM BLVD., 3RD FLOOR ROCKVILLE, MARYLAND 20850 OR (301)527-2131 FAX. You may use any written statement that is signed and dated by you and states your intention to cancel, or you may use this notice by dating and signing below. Keep one copy of this notice because it contains important information about your rights. If you cancel by mail or telegram, you must send the notice no later than midnight of DECEMBER 14, 2005 (or midnight of the third business day following the latest of the three events listed above). If you send or deliver your written notice to cancel some other way, it must be delivered to the above address no later than that time. 1 WISH TO CANCEL. Consumer's Signature Date V. MARK POLINKA ACKNOWLEDGMENT OF RECEIPT EACH OF THE UNDERSIGNED HEREBY ACKNOWLEDGES THE RECEIPT OF TWO (2) COMPLETED COPIES OF THIS NOTICE OF RIGHT TO CANCEL. Z V . K POLINKA 15ate NOTICE OF RIGHT TO CANCEURESCISSION MODEL FORM H-8 (GENERAL) DoeMagic t7WW 800-644•1962 05106105 www.docmagic.com N-1 .-I.I- NOTICE OF RIGHT TO CANCEL Loan Number: 15 42 8 Borrowers: V. MARK POLINKA, TERRI L. POLINKA Property Address: 824 FAIRFIELD STREET, MECHANICSBURG, PENNSYLVANIA 17055 YOUR RIGHT TO CANCEL You are entering into a transaction that will result in a mortgage, lien or security interest on or in your home. You have a legal right under federal law to cancel this transaction, without cost, within three business days from whichever of the following events occurs last: 1. the date of the transaction, which is DECEMBER 10, 2 0 0 5 ; or 2. the date you receive your Truth in Lending disclosures; or 3, the date you receive this notice of your right to camel. If you cancel the transaction, the mortgage, lien or security interest is also cancelled. Within 20 calendar days after we receive your notice, we must take the steps necessary to reflect the fact that the mortgage, lien or security interest on or in your home has been cancelled, and we must return to you any money or property you have given to us or to anyone else in connection with this transaction. You may keep any money or property we have given you until we have done the things mentioned above, but you must then offer to return the money or property. If it is impractical or unfair for you to return the property, you must offer its reasonable value. You may offer to return the property at your home or at the location of the property. Money must be returned to the address below. If we do not take possession of the money or property within 20 calendar days of your offer, you may keep it without further obligation. HOW TO CANCEL If you decide to cancel this transaction, you may do so by notifying us in writing, at UNITED MEDICAL BANK, FSB 800 KING FARM BLVD., 3RD FLOOR ROCKVILLE, MARYLAND 20850 OR (301)527-2131 FAX. You may use any written statement that is signed and dated by you and states your intention to cancel, or you may use this notice by dating and signing below. Keep one copy of this notice because it contains important information about your rights. If you cancel by mail or telegram, you must send the notice no later than midnight of DECEMBER 14, 2005 Or midnight of the third business day following the latest of the three events listed above). If you send or deliver your written notice to cancel some other way, it must be delivered to the above address no later than that time. 1 WISH TO CANCEL. Consumer's Signature Date TERRI L. POLINKA ACKNOWLEDGMENT OF RECEIPT EACH OF THE UNDERSIGNED HEREBY ACKNOWLEDGES THE RECEIPT OF TWO (2) COMPLETED COPIES OF THIS NOTICE OF RIGHT TO CANCEL. eTER2I L. POLINKA Date NOTICE OF RIGHT TO CANCEURESCISSION MODEL FORM H-6 (GENERAL) Gowpoc ti Ow 600-643-1362 05106/05 www,docrosgk.cam NOTICE OF RIGHT TO CANCEL Loan Number: 15 4 2 8 Borrowers: V. MARK POLINKA, TERRI L. POLINKA Property Address: 824 FAIRFIELD STREET, MECHANICSBURG, PENNSYLVANIA 17055 YOUR RIGHT TO CANCEL You are entering into a transaction that will result in a mortgage, lien or security interest on or in your home. You have a legal right under federal law to cancel this transaction, without cost, within three business days from whichever of the following events occurs last: 1. the date of the transaction, which is DECEMBER 10, 2005 ; or 2. the date you receive your Truth in lending disclosures; or 3. the date you receive this notice of your right to cancel. If you cancel the transaction, the mortgage, lien or security interest is also cancelled. Within 20 calendar days after we receive your notice, we must take the steps necessary to reflect the fact that the mortgage, lien or security interest on or in your home has been cancelled, and we must return to you any money or property you have given to us or to anyone else in connection with this transaction. You may keep any money or property we have given you until we have done the things mentioned above, but you must then offer to return the money or property. If it is impractical or unfair for you to return the property, you must offer its reasonable value. You may offer to return the property at your home or at the location of the property. Money must be returned to the address below. If we do net take possession of the money or property within 20 calendar days of your offer, you may keep it without further obligation. HOW TO CANCEL If you decide to cancel this transaction, you may do so by notifying us in writing, at UNITED MEDICAL BANK, FSB 800 KING FARM BLVD., 3RD FLOOR ROCKVILLE, MARYLAND 20850 OR (301)527-2131 FAX. You may use any written statement that is signed and dated by you and states your intention to cancel, or you may use this notice by dating and signing below. Keep one copy of this notice because it contains important information about your rights. If you cancel by mail or telegram, you must send the notice no later than midnight of DECEMBER 14, 2005 (or midnight of the third business day following the latest of the three events listed above). If you send or deliver your written notice to cancel some other way, it must be delivered to the above address no later than that time. 1 WISH TO CANCEL. Consumer's Signature Date V. MARK POLINKA ACKNOWLEDGMENT OF RECEIPT EACH OF THE UNDERSIGNED HEREBY ACKNOWLEDGES THE RECEIPT OF TWO (2) COMPLETED COPIES OF THIS NOTICE OF RIGHT TO CANCEL. L 0 OS' V. POLINKA Date NOTICE OF RIGHT TO CANCE JRESCISSION MODEL FORM H-8 (GENERAL) D%Uagic dTOM 60"49-1362 05106105 www.docmagk.com Nwlc.,nc. I. tan EXHIBIT "F" NOTICE OF RIGHT TO CANCEL Loan Number: 15428 Borrowers: V. MARK POLINKA, TERRI L. POLINKA Property Address: 829 FAIRFIELD STREET, MECHANICSBURG, PENNSYLVANIA 17055 YOUR RIGHT TO CANCEL You are entering into a transaction that will result in a mortgage, lien or security interest on or in your home. You have a legal right under federal law to cancel this transaction, without cost, within three business days from whichever of the following events occurs last: 1. the date of the transaction, which is DECEMBER 10, 2005 ; or 2. the date you receive your Truth in Lending disclosures; or 3. the date you receive this notice of your right to cancel. If you cancel the transaction, the mortgage, lien or security interest is also cancelled. Within 20 calendar days after we receive your notice, we mast take the steps necessary to reflect the fact that the mortgage, lien or security interest on or in your home has been cancelled, and we must return to you any [Honey or property you have given to us or to anyone else in cotmection with this transaction. You may keep any money or property we have given you until we have done the things mentioned above, but you must then offer to return the money or property. If it is impractical or unfair for you to return the property, you must offer its reasonable value. You may offer to return the property at your home or at the location of the property. Money must be returned to the address below. If we do not take possession of the money or property within 20 calendar days of your offer, . you may keep it without Rusher obligation. HOW TO CANCEL If you decide to cancel this transaction, you may do so by notifying us in writing, at UNITED MEDICAL BANK, FSB 800 KING FARM BLVD., 3RD FLOOR ROCKVILLE, MARYLAND 20850 OR (301)527-2131 FAX. You may use any written statement that is signed and dated by you and states your intention to cancel, or you may use this notice by dating and signing below. Keep one copy of this notice because it contains important information about your rights. If you cancel by mail or telegram, you must send the notice no later than midnight of DECEMBER 14, 2005 (or midnight of the third business day following the latest of the three events listed above). If you send or deliver your written notice to cancel some other way, it must be delivered to the above address no later than that time. 1 WISH TO CANCEL. -rP TERRI L. POLINKA ACKNOWLEDGMENT OF RECEIPT EACH OF THE UNDERSIGNED HEREBY ACKNOWLEDGES THE RECEIPT OF TWO (2) COMPLETED COPIES OF THIS NOTICE OF RIGHT TO CANCEL. TERRI L. POLINKA Date NOTICE OF RIGHT TO CANCEL/RESCISSION MODEL FORM H-8 (GENERAL) OoeMagtc 4EV%UU s ao "-1952 05/06/05 www,docmagk.com Nanc.msc.l.,mn NOTICE OF RIGHT TO CANCEL Loan Number: 15428 Borrowers: V. MARK POLINKA, TERRI L. POLINKA PropertyAddress: 829 FAIRFIELD STREET, MECHANICSBURG, PENNSYLVANIA 17055 YOUR RIGHT TO CANCEL You are entering into a transaction that will result in a mortgage, lien or security interest on or in your home. You have a legal right under federal law to cancel this. transaction, without cost, within three business days from whichever of the following events occurs last: 1. the date of the transaction, which is DECEMBER 10, 2005 ; or 2. the date you receive your Truth in Lending disclosures; or 3. the date you receive this notice of your right to cancel. If you cancel the transaction, the mortgage, lien or security interest is also cancelled. Within 20 calendar days after we receive your notice, we must take the steps necessary to reflect the fad that the mortgage, lien or security interest on or in your home has been cancelled, and we must return to you any money or property you have given to us or to anyone else in connection with this transaction. You may keep any money or property we have given you until we have done the things mentioned above, but you must then offer to return the money or property. If it is impractical or unfair for you to return the property, you must offer its reasonable value. You may offer to return the property at your home or at the location of the property. Money trust be returned to the address below. If we do not take possession of the money or property within 20 calendar days of your offer, you may keep it without further obligation. HOW TO CANCEL If you decide to cancel this transaction, you may do so by notifying us in writing, at UNITED MEDICAL BANK, FSB 800 KING FARM BLVD., 3RD FLOOR ROCKVILLE, MARYLAND 20850 OR (301)527-2131 FAX. You may use any written statement that is signed and dated by you and states your intention to cancel, or you may use this notice by dating and signing below. Keep one copy of this notice because it contains important information about your rights. If you cancel by mail or telegram, you must send the notice no later than midnight of DECEMBER 14, 2005 (or midnight of the third business day following the latest of the three events listed above). If you send or deliver your written notice to cancel some other way, it must be delivered to the above address no later than that time. I WISH TO CANCEL. Consumer's Signature Date V. MARK POLINKA ACKNOWLEDGMENT OF RECEIPT EACH OF THE UNDERSIGNED HEREBY ACKNOWLEDGES THE RECEIPT OF TWO (2) COMPLETED COPIES OF THIS NOTICE OF RIGHT TO CANCEL. V. MARK POLINKA 4.0ate, NOTICE OF RIGHT TO CANCEURESCISSION MODEL FORM H•8 (GENERAL) DooAlagic eVRMVMW a 649- ?362 05106/05 www.doomayle.com Nonc.rt I Ian NOTICE OF RIGHT TO CANCEL Loan Number: 15 4 2 8 Borrowers: V. MARK POLINKA, TERRI L. POLINKA Property Address: 829 FAIRFIELD STREET, MECHANICSBURG, PENNSYLVANIA 17055 YOUR RIGHT TO CANCEL You are entering into a transaction that will result in a mortgage, lien or security interest on or in your home. You have a legal right under federal law to cancel this transaction, without cost, within three business days from whichever of the following events occurs last: 1. the date of the transaction, which is DECEMBER 10, 2005 ; or 2. the date you receive your Truth in Lending disclosures; or 3. the date you receive this notice of your right to cancel. If you cancel the transaction, the mortgage, lien or security interest is also cancelled. Within 20 calendar days after we receive your notice, we must take the steps necessary to reflect the fact that the mortgage, lien or security interest on or in your home has been cancelled, and we must return to you any money or property you have given to us or to anyone else in connection with this transaction. You may keep any money or property we have given you until we have done the things mentioned above, but you must then offer to return the money or property. If it is impractical or unfair for you to return the property, you rust offer its reasonable value. You may offer to return the property at your home or at the location of the property. Money must be returned to the address below. If we do not take possession of the money or property within 20 calendar days of your offer, you may keep it without further obligation. HOW TO CANCEL If you decide to cancel this transaction, You may do so by notifying us in writing, at UNITED MEDICAL BANK, FSB 800 KING FARM BLVD., 3RD FLOOR ROCKVILLE, MARYLAND 20850 OR (301)527-2131 FAX. You may use any written statement that is signed and dated by you and states your intention to cancel, or you may use this notice by dating and signing below. Keep one copy of this notice because it contains important information about your rights. If you cancel by mail or telegram, you most send the notice no later than midnight of DECEMBER 14, 2005 (or midnight of the third business day following the latest of the three events listed above). If you send or deliver your written notice to cancel some other way, it must be delivered to the above address no later than that time. I WISH TO CANCEL. Consumer's Signature Date TERRI L. POLINKA ACKNOWLEDGMENT OF RECEIPT EACH OF THE UNDERSIGNED HEREBY ACKNOWLEDGES THE RECEIPT OF TWO (2) COMPLETED COPIES OF THIS NOTICE OF RIGHT TO CANCEL. TERRI L. POLINKA Date NOTICE OF RIGHT TO CANCEURESCIS MON MODEL FORM H-8 (GENERAL) DOCMaylC CVWM D c c362 05/06/05 Nanc.m A - NOTICE OF RIGHT TO CANCEL Loan Number: 15 4 2 8 Borrowers: V. MARK POLINKA, TERRI L. POLINKA Property Address: 829 FAIRFIELD STREET, MECHANICSBURG, PENNSYLVANIA 17055 YOUR RIGHT TO CANCEL You are entering into a transaction that will result in a mortgage, lien or security interest. on or in your home. You have a legal right under federal law to cancel this transaction, without cost, within We business days from whichever of the following events occurs last: 1. the date of the transaction, which is DECEMBER 10 , 2 0 0 5 ; or 2. the date you receive your Truth in Lending disclosures; or 3. the date you receive this notice of your right to cancel. If you cancel the transaction, the mortgage, lien or security interest is also cancelled. Within 20 calendar days after we receive your notice, we must take the steps necessary to reflect the fact that the mortgage, lien or security interest on or in your home has been cancelled, and we must return to you any money or property you have given to us or to anyone else in connection with this transaction. You may keep any money or property we have given you until we have done the things mentioned above, but you must then offer to return the money of property. If it is impractical or unfair for you to return the property, you must offer its reasonable value. You may offer to return the property at your home or at the location of the property. Money mast be returned to the address below. If we do not take possession of the money or property within 20 calendar days of your offer, you may keep it without further obligation. HOW TO CANCEL If you decide to cancel this transaction, you may do so by notifying us in writing, at UNITED MEDICAL BANK, FSB 800 KING FARM BLVD., 3RD FLOOR ROCKVILLE, MARYLAND 20850 OR (301)527-2131 FAX. You may use any written statement that is signed and dated by you and states your intention to cancel, or you may use this notice by dating and signing below. Keep one copy of this notice because it contains important information about your rights. If you cancel by mail or telegram, you must send the notice no later than midnight of DECEMBER 14, 2005 (or midnight of the third business day following the latest of the three events listed above). If you send or deliver your written notice to cancel some other way, it must be delivered to the above address no later than that time. I WISH TO CANCEL. Consumer's Signature Date V. MARK POLINKA ACKNOWLEDGMENT OF RECEIPT EACH OF THE UNDERSIGNED HEREBY ACKNOWLEDGES THE RECEIPT OF TWO (2) COMPLETED COPIES OF THIS NOTICE OF RIGHT TO CANCEL. v. MARK P6LINKA ate NOTICE OF RIGHT TO CANCEURESCISSION MODEL FORM H-8 (GENERAL) Doclll1911 eV%WVV W eao-a<s-I -- 05/08105 www. dacmayk.com Nmc.noc.1 - L , • CERTIFICATE OF SERVICE I, David Banks, do hereby certify that on this 7th day of February 2007, I caused a true and correct copy of Defendant United Medical Bank, FSB's Answer and New Matter to be served upon the following counsel via United States First-Class Mail, postage pre- paid to: Joseph K. Goldberg, Esquire THE LAW OFFICE OF JOSEPH K. GOLDBERG 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 David Banks, Esquire Attorney for United Medical Bank, FSB --- TO Joseph F. Riga Pa. Attorney ID No. 34687 McDowell Riga A Professional Corporation 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 (610) 525-5518 Counsel for Deutsche Bank National Trust Company, as (610) 525-5521 FAX Trustee and Bank of New York, as successor Trustee ----------------------------------------------- VINCENT MARK POLINKA and TERRI L. POLINKA, ; IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiffs, No. 06-6136 V. Civil Term UNITED MEDICAL BANK, FSB, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as Successor Trustee to J.P. ; NOTICE TO PLEAD Morgan Chase„ Defendants. - -------------------------------------------- TO: VINCENT MARK POLINKA and TERRI L. POLINKA c/o Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 You are hereby notified to plead to the Answering Defendants' New Matter to your Complaint that is herein served upon within twenty (20) days from the service of this Notice or a default judgment may be entered against you. Dated: Bryn Mawr, PA Respect y submitted, March 5, 2007 Mc WELL RIGA By: Joseph F. (PA.,,?Cy. No. 5 Counsel for Defendants Deutsche (Bank National Trust Company, as Trustee and Bank of New York, as successor Trustee Joseph F. Riga Pa. Attorney ID No. 34687 McDowell Riga A Professional Corporation 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 (610) 525-5518 (610) 525-5521 FAX Counsel for Deutsche Bank National Trust Company, as Trustee and Bank of New York, as successor Trustee VINCENT MARK POLINKA and TERRI L. POLINKA, V. Plaintiffs, UNITED MEDICAL BANK, FSB, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as Successor Trustee to J.P. Morgan Chase„ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 06-6136 Civil Term ANSWER OF DEUTSCHE BANK NATIONAL TRUST COMPANY AND BANK OF NEW YORK TO AMENDED COMPLAINT, WITH DEFENSES Defendants. ----------------------------------------------- Defendants Deutsche Bank National Trust Company, as Trustee ("Deutsche Bank") and Bank of New York, as successor Trustee ("BONY," and together with Deutsche Bank, the "Answering Defendants"), by their attorneys, hereby answer the amended complaint (the "Complaint") filed by the plaintiffs, Vincent Mark Polinka and Terri L. Polinka (together, the "Plaintiffs"), and allege as follows: Response to allegations under the heading "INTRODUCTION" The unnumbered paragraph headed "Introduction" is admitted in part, denied as stated in part, and denied in part. It is admitted that Plaintiffs seek the relief outlined in the Introduction. It is specifically denied that Plaintiffs are entitled to such relief. It is further specifically denied that Deutsche Bank, as assignee of the Plaintiffs' December 10, 2005 loans in the original, principal amount of One Hundred and Eighty-Three Thousand Dollars (the "First Loan"), and BoNY, as assignee of the Plaintiffs' December 10, 2005 loan in the original, principal amount of Forty-Two Thousand Dollars (the "Second Loan," and together with the First Priority Loan, the "Loans"), had any role in the origination of the Loans or participated in any alleged conduct said to have occurred at that time. By way of further answer, certain allegations contained in the Introduction state conclusions of law to which no reply is required, and therefore, they are denied. By way of further answer, the unnumbered "Introduction" made by the Plaintiff is an improper pleading and not contemplated by Pennsylvania Rule of Civil Procedure 1019, and therefore, is denied. Response to allegations under the heading "PARTIES AND VENUE" 1. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 1 of the Complaint, and therefore, they are denied. 2. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 2 of the Complaint, and therefore, they are denied. 3. Admitted. 4. Admitted in part, denied in part. It is denied that the Plaintiffs are entitled to any relief that would implicate Deutsche Bank or otherwise affect the First Loan or the lien associated therewith. The remaining allegations contained in paragraph 4 of the Complaint are admitted. 5. Admitted. 6. Admitted in part, denied in part. It is denied that the Plaintiffs are entitled to any relief 2 that would implicate Deutsche Bank or otherwise affect the First Loan or the lien associated therewith. The remaining allegations contained in paragraph 6 of the Complaint are admitted. 7. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 7 of the Complaint concerning alleged "illegal acts," and therefore, they are denied. By way of further answer, the allegations contained in paragraph 7 of the Complaint advance conclusions of law to which no reply is required, and therefore, they are denied. Response to allegations under the heading "FACTS AND BACKGROUND" 8. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 8 of the Complaint, and therefore, they are denied. 9. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 9 of the Complaint, and therefore, they are denied. 10. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 10 of the Complaint, and therefore, they are denied. 11. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the remaining allegations contained in paragraph 11 of the Complaint, and therefore, they are denied. 12. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the remaining allegations contained in paragraph 12 of the Complaint, and 3 therefore, they are denied. 13. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 13 of the Complaint, and therefore, they are denied. 14. Denied. No allegation of fact is advanced in paragraph 14 of the Complaint, and therefore, that paragraph is denied. 15. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the remaining allegations contained in paragraph 15 of the Complaint, and therefore, they are denied. 16. Admitted in part, denied in part. It is admitted, upon information and belief, that Plaintiffs' Loan has a standard prepayment penalty. The remaining allegations contained in paragraph 16 of the Complaint are denied. 17. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the remaining allegations contained in paragraph 17 of the Complaint, and therefore, they are denied. 18. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 18 of the Complaint, and therefore, they are denied. 19. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 19 of the Complaint, and therefore, they are denied. 20. Denied. Answering Defendants lack information or knowledge sufficient to form a belief 4 as to the truth the allegations contained in paragraph 20 of the Complaint, and therefore, they are denied. 21. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the remaining allegations contained in paragraph 21 of the Complaint, and therefore, they are denied.. 22. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations concerning benefit as that is a subjective standard based on the idiosyncratic circumstances of the Plaintiff, and therefore, the allegations contained in paragraph 22 of the Complaint concerning benefit are denied. 23. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 23 of the Complaint, and therefore, they are denied. 24. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the remaining allegations contained in paragraph 24 of the Complaint, and therefore, they are denied. 25. Denied. By way of further answer, the allegations contained in paragraph 25 of the Complaint advance conclusions of law to which no reply is required, and therefore, they are denied. Response to allegations under the heading "COUNT I Violation of the Consumer Protection Law" 26. The Answering Defendants incorporate and re-allege all of their previous responses as if set forth here in their entirety. 27. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 27 of the Complaint, and therefore, they are denied. 28. Denied. The allegations contained in paragraph 28 of the Complaint advance conclusions of law to which no reply is required, and therefore, they are denied. 29. Denied. The allegations contained in paragraph 29 of the complaint are addressed to defendants other than the Answering Defendants, and therefore, a reply from the Answering Defendants is not required and the allegations are denied. By way of further answer, Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 29 of the Complaint, and therefore, they are denied. By way of further answer, the allegations contained in paragraph 29 of the Complaint advance conclusions of law to which no reply is required, and therefore, they are denied. 30. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 30 of the Complaint, and therefore, they are denied. 31. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the remaining allegations contained in paragraph 31 of the Complaint, and therefore, they are denied. 32. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the allegations contained in paragraph 32 of the Complaint, and therefore, they are denied. 33. Denied. 6 WHEREFORE, the Answering Defendants respectfully request that the Plaintiffs take nothing on their Complaint from the Answering Defendants, and further, that the Complaint be dismissed with prejudice, the Answering Defendants be awarded their legal costs and attorneys' fees, and for such further relief as the Court deems appropriate. Response to allegations under the heading "COUNT II Fraud (Damages)" 34. The Answering Defendants incorporate and re-allege all of their previous responses as if set forth here in their entirety. 35. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the remaining allegations contained in paragraph 35 of the Complaint, and therefore, they are denied. 36. Denied. Answering Defendants incorporate their response to paragraph 35 of the Complaint as if set forth here in its entirety. 37. Denied. Answering Defendants incorporate their response to paragraph 35 of the Complaint as if set forth here in its entirety. 38. Denied. WHEREFORE, the Answering Defendants respectfully request that the Plaintiffs take nothing on their Complaint from the Answering Defendants, and further, that the Complaint be dismissed with prejudice, the Answering Defendants be awarded their legal costs and attorneys' fees, and for such further relief as the Court deems appropriate. Response to allegations under the heading "COUNT III Fraud (Rescission)" 39. The Answering Defendants incorporate and re-allege all of their previous responses as if set forth here in their entirety. 7 40. Denied. Answering Defendants lack information or knowledge sufficient to form a belief as to the truth the remaining allegations contained in paragraph 40 of the Complaint, and therefore, they are denied. By way of further answer, certain of the allegations contained in paragraph 40 of the Complaint advance conclusions of law to which no reply is required, and therefore, they are denied. WHEREFORE, the Answering Defendants respectfully request that the Plaintiffs take nothing on their Complaint from the Answering Defendants, and further, that the Complaint be dismissed with prejudice, the Answering Defendants be awarded their legal costs and attorneys' fees, and for such further relief as the Court deems appropriate. NEW MATTER 1. Plaintiffs have failed to allege fraudulent or deceptive acts by the Answering Defendants, or in the alternative, have failed to do so with the requisite specificity. 2. The Answering Defendants have committed no act of fraud against the Plaintiffs. 3. Plaintiffs have failed to allege all of the elements of fraud as they allegedly pertain to the Answering Defendants. 4. Plaintiffs knowingly and voluntarily accepted the terms of the Loans offered to them by the originator of the Loans, United Medical Bank, FSB ("United"). 5. The Answering Defendants are holders in due course that paid fair consideration for the loan without knowledge of any alleged claims or defenses of the Plaintiffs. 6. The Answering Defendants are not liable over for any claims against United, nor may any relief be had against the Loans on such claims. 7. Plaintiffs have suffered no actual damages as a result of the Answering Defendants' 8 alleged or actual conduct. 8. Plaintiffs are not entitled to punitive damages, nor can they properly be awarded against the Answering Defendants under applicable statutory law and/or constitutional principle. 9. Plaintiffs are not entitled to treble damages from the Answering Defendants. 10. Plaintiffs are not entitled to attorneys' fees or litigation costs from the Answering Defendants. 11. The alleged harms suffered by Plaintiffs, if any, are the result of their own actions, inactions, decisions, negligence, contributory negligence and/or fraud. 12. The alleged harms suffered by Plaintiffs, if any, are the result of the actions, inactions, decisions, negligence, contributory negligence and/or fraud of parties other than the Answering Defendants over who the Answering Defendants had no control or responsibility.. 13. Plaintiffs seek relief not provided for under the causes of action contained in the Complaint. 14. The alleged fraud described by the Plaintiffs in their complaint is not fraud in the inducement. 15. Certain of the Plaintiffs' claims are barred by the gist of the action doctrine. 16. The Complaint fails to state claims upon which relief may be granted. 9 17. The Answering Defendants reserve their right to raise additional defenses that are learned or developed through the course of discovery in this matter. Dated: Bryn Mawr, PA Respectfully su March 5, 2007 McDO L RIGA By: Josofi F. W(PA Atty. No. 5'9.216) Counsel for Defendants Deutsche Bank National Trust Company, as Trustee and Bank of New York, as successor Trustee 10 VERIFICATION I, Lisa Magnuson a Vice President for Residential Funding Company, LLC hereby state that the facts set forth in the foregoing Answer of Deutsche Bank National Trust Company, as Trustee, are true and correct to the best of my knowledge, information and belief. This statement is made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Dated March 5th, 2007 By- Name: Lisa Magnuson Title: Vice President For Defendants Deutsche Bank National Trust Company Americas as Trustee Residential Funding Company, LLC fka Residential Funding Corporation Attorney in Fact CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, a true and correct copy of the foregoing Answer of Residential Funding Company LLC and Homecoming Financial LLC was served by United States mail, postage prepaid upon the following: Joseph K. Goldberg, Esquire Counsel for Plaintiff 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 David Banks, Esquire Counsel for United Banks & Banks 3038 Church Road Lafayette Hill, PA 19444 Dated: Bryn Mawr, PA March 5, 2007 By: JosepW. Rig Atty. No. 57716) for Defendants Deutsche Bank National Trust Company, as Trustee and Bank of New York, as successor Trustee ??? N ?,? .? ? ? ^? ? `. l,D ! --,? ? w- T ?- ? ' r? - N ? _? __. ?? -^C ,. Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 joldberg@ssbc-law.com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, CIVIL TERM (LAW) Plaintiffs V. UNITED MEDICAL BANK, FSB, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as successor Trustee to J.P. Morgan Chase, NO. 06-6136 JURY TRIAL DEMANDED Defendants PLAINTIFFS' OPPOSITION TO MOTION FOR PROTECTIVE ORDER AND, ALTERNATIVELY. CROSS-MOTION FOR PAYMENT OF REASONABLE EXPENSES AND ATTORNEY'S FEES The Plaintiffs, by and through counsel, Joseph K. Goldberg, oppose the Motion for Protective Order filed in this matter by Defendant United Medical Bank, FSB and nonparty witness Charles Marino, as follows: 1. This case involves alleged wrongdoing arising out of the Plaintiffs' residential mortgage refinancing through the moving Defendant, United Medical Bank, FSB ("Defendant United"). 2. Defendant United operates a mortgage broker division physically located in Sewickley, Pennsylvania. 3. Defendant United mailed the Plaintiffs a solicitation letter, which led to the transaction at issue. 4. The closing transaction took place in Cumberland County. 5. The deponent whom the Plaintiffs seek to depose is, or was at the time of the transaction, an agent and/or employee of Defendant United's broker division, and was the Plaintiffs' primary contact throughout the refinancing process.' 6. The deponent lives and works within the Commonwealth, and is within the jurisdiction and subpoena power of this Court. 42 Pa. C.S. § 5905. 7. Plaintiffs provided the deponent with the requisite witness fees along with his subpoena to appear and testify at the scheduled deposition. 42 Pa. C.S. § 5903. 8. The parties agreed to the date and time of the deposition. They also agreed that if the Motion for Protective Order is denied, it will be held at the office of Plaintiffs' counsel rather than in Cumberland County. 9. Plaintiffs' claims in this action are based in significant part on oral representations and omissions on the part of Mr. Marino, the deponent. As such, the credibility of the deponent is critical to the Plaintiffs' case. Therefore, it is necessary for the deposition to be held face-to-face rather than by telephone. The inability to depose Mr. Marino face-to-face will result in substantial prejudice to the Plaintiffs. 10. The cost of a telephone deposition is usually two to three times that of a face-to-face deposition and would be unnecessarily burdensome to the Plaintiffs. And, while it may be true that this deposition will cause an inconvenience to the deponent, the same can be said about every deposition. This inconvenience is not 'The deposition was scheduled to be held May 22, 2007. The parties have agreed to reschedule it to June 12, 2007, in order for this Motion to be decided. 2 "unreasonable" as contemplated by PA. R.C.P. No. 4011(b). WHEREFORE, the Plaintiffs respectfully request that the Motion for Protective Order be denied. CROSS-MOTION FOR PAYMENT OF REASONABLE EXPENSES AND ATTORNEY'S FEES 11. In the event that the Court grants the Motion for Protective Order and the deposition is to be taken in Sewickley, PA, where the deponent works, the Plaintiffs move that this Court order the deponent and/or Defendant United to pay the expenses of the Plaintiffs for their attorney to travel to Sewickley, and the fees of Plaintiffs' counsel for the time spent in travel to and from the location of the deposition. 12. As Sewickley is more than 100 miles from this courthouse, the Court may order such relief. PA. R.C.P. No. 4008. WHEREFORE, Plaintiffs respectfully request that their Cross-Motion be granted, and the deponent and/or Defendant United be ordered to pay the reasonable expenses of the Plaintiffs for their attorney to travel to the Sewickley deposition location, and fees for Plaintiffs' attorney for the time spent traveling to and from the deposition location. Respectfully Esquire J K GjN l Y47 ,Attorney ID 82 2 080 Lingle o oad, Suite 106 Harrisburg, 17110 (717)703-3600 Attorney for Plaintiffs 3 CERTIFICATE OF SERVICE 1, the undersigned, hereby certify that on the L_ day of AiAl- , 2007,1 served a copy of the foregoing Plaintiffs' Opposition to Motion for Pr ective Order and, Alternatively, Cross-Motion for Payment of Reasonable Expenses and Attorney's Fees, by e-mail and by first-class mail, postage prepaid, upon the following: Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second floor Bryn Mawr, PA 19010 Attorney for Defendants Deutsche Bank National Trust Company and Bank of New York and David B. Banks, Esquire Banks & Banks 3038 Church Road Lafayette Hill, PA 19444 Attorney for Defendant United Medical Bank, FSB and Charles Marino -;; co BANKS & BANKS BY: DAVID BANKS, ESQUIRE IDENTIFICATION NO. 57018 3038 CHURCH ROAD LAFAYETTE HILL, PA 19444 ATTORNEY FOR DEFENDANT (610) 940-3900 UNITED MEDICAL BANK VINCENT MARK POLINKA and TERRI L. POLINKA, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs : PENNSYLVANIA V. CIVIL TERM (LAW) UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA NO. 06-6136 CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, JURY TRIAL DEMANDED Defendants MOTION FOR PROTECTIVE ORDER Defendant, United Medical Bank, FSB and nonparty witness Charles Marino, by their attorney, David Banks of Banks & Banks, pursuant to Pa.R.Civ.P. 4012 move as follows: 1. The moving party collectively is defendant United Medical Bank, FSB ("United Bank") and Charles Marino ("Marino'). 2. The non-moving parties are plaintiffs Vincent and Terri Polinka ("Plaintiffs"). 3. Plaintiffs filed a Complaint on October 20, 2006. Thereafter, on January 16, 2007, plaintiffs filed an Amended Complaint. 4. United Bank filed an Answer and New Matter on February 12, 2007. 5. On or about April 27, 2007 plaintiffs sent a Notice of Deposition for Charles Marino, a non-party witness to the instant litigation. 6. The Pennsylvania Rules of Civil Procedure respecting discovery provide that "[n]o discovery or deposition shall be permitted which ... would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party." Pa.R.Civ.P. 4011(b). 7. The Pennsylvania Rules of Civil Procedure further provide that: "[u]pon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable ... burden or expense." Pa.R.Civ.P. 4012(a). The Court may order "that the ... deposition shall be only on specified terms and conditions, including a designation of the time and place." Pa.R.Civ.P. 4012(a)(2). 8. The deposition for Mr. Marino is currently scheduled for May 22, 2007 at the Law Office of Joseph K. Goldberg, attorney for the plaintiffs. 9. The deposition as scheduled will create an unreasonable burden and expense on Mr. Marino for the following reasons: a) Mr. Goldberg's office is located in Harrisburg, Pennsylvania. b) Mr. Marino lives in Clinton, Pennsylvania, four hours away from Harrisburg. C) Mr. Marino is self-employed and cannot afford to be away from his office in Pittsburgh for an extended period of time. d) Conducting the deposition in Harrisburg would create an undue hardship and financial burden for Mr. Marino, who is not a parry to the instant litigation. 10. Marino has requested that the deposition be held in Pittsburgh, or, in the alternative, that the deposition be conducted by telephone; however, plaintiffs have refused to accommodate him. 2 WHEREFORE, Defendant requests that this Honorable Court GRANT the foregoing Motion for Protective Order and order that the deposition of Charles Marino take place in Pittsburgh, Pennsylvania, or, in the alternative, schedule an argument in order to resolve this dispute and stay the deposition of Mr. Marino until such time as this Motion for Protective Order is heard. Dated:( r?`( b Respectfully Submitted, BANKS & BANKS BY: David Banks, Identification No. 57018 3038 Church Road Lafayette Hill, PA 19444 (610) 940-3900 CERTIFICATE OF SERVICE I, David Banks, do hereby certify that on this 1lo fh day of May, 2007, I caused a true and correct copy of Defendant United Medical Bank, FSB and Charles Marino's Motion for Protective Order to be served upon the following counsel via United States First-Class Mail, postage pre-paid to: Joseph K. Goldberg, Esquire THE LAW OFFICE OF JOSEPH K. GOLDBERG 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 David B, yKs, Esquire Attorn for United Medical Bank, FSB G cn AM% Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 jgoldberg@ssbc-law. com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs V. UNITED MEDICAL BANK, FSB, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as successor Trustee to J.P. Morgan Chase, CIVIL TERM (LAW) NO. 06-6136 JURY TRIAL DEMANDED Defendants AMENDMENT TO PLAINTIFFS' OPPOSITION TO MOTION FOR PROTECTIVE ORDER AND. ALTERNATIVELY, CROSS-MOTION FOR PAYMENT OF REASONABLE EXPENSES AND ATTORNEY'S FEES Plaintiffs hereby amend their previously filed Opposition to Motion for Protective Order and, Alternatively, Cross-Motion for Payment of Reasonable Attorney's Fees, as follows: 1. No judge has previously ruled on any issue of any sort in this case. 2. Plaintiffs sought the concurrence of Defendant United Medical Bank, FSB and non-party filer Charles Marino in their Cross-Motion, but neither concurs in the .- Cross-Motion. Respe Ily submitted, Josep . Goldberg, squire or ey I D No. 467 20 Linglestown ad, Suite 106 Hafrisburg, PA 110 (717)703-3600 C? Attorney for Plaintiffs Date: ?? ti. CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the -Q day of AA4,1'-,2007, I served a copy of the foregoing document, by first-class mail, postage repaid, upon the following: Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second floor Bryn Mawr, PA 19010 Attorney for Defendants Deutsche Bank National Trust Company and Bank of New York and David B. Banks, Esquire Banks & Banks 3038 Church Road Lafayette Hill, PA 19444 Attorney for Defendant United Medical Bank, FSB V-3 0 ?s C r BANKS & BANKS BY: CANDIDA J. FABICK, ESQUIRE IDENTIFICATION NO. 90611 3038 CHURCH ROAD LAFAYETTE HILL, PA 19444 ATTORNEY FOR DEFENDANT (610) 940-3900 UNITED MEDICAL BANK VINCENT MARK POLINKA and TERRI L. POLINKA, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs : PENNSYLVANIA V. CIVIL TERM (LAW) UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA NO. 06-6136 CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, Defendants JURY TRIAL DEMANDED PRAECIPE TO ATTACH EXHIBIT TO DEFENDANT UNITED MEDICAL BANK, FSB AND CHARLES MARINO'S MOTION FOR PROTECTIVE ORDER To The Prothonotary: Kindly attach the following Exhibit to Defendant United Medical Bank, FSB and Charles Marino's Motion for Protective Order. BANKS & BANKS, By: Candida J. F ' k, Esquire Attorney for Plaintiffs EXHIBIT "A" VINCENT MARK POLINKA and TERRI L. POLINKA, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs : PENNSYLVANIA V. CIVIL TERM (LAW) UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA NO. 06-6136 CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, Defendants : JURY TRIAL DEMANDED AFFIDAVIT OF CHARLES MARINO STATE OF PENNSYLVANIA SS COUNTY OF BEAVER I, Charles Marino, being duly sworn, according to the law, hereby depose and say that, if called to testify, could completely swear to the following: 1. I live in Clinton, Pennsylvania, which is a suburb of Pittsburgh. 2. I am self-employed and cannot afford to be away from my office in Pittsburgh for an extended period of time. 3. Attending a deposition in Harrisburg would create an undue hardship and financial burden for me. 4. I have requested that the deposition be held in Pittsburgh. I have also requested that the deposition be conducted by telephone. . . --% sworn to and subscribed before me this ?? h day of ?'I?c?_, 2007 Notary ublic i Charles M no COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Leah E Balmer, Notary Public Robinson Township, Allegheny County My Commission Expires July 26, 2010 ? o Q '? N M BANKS & BANKS BY: DAVID BANKS, ESQUIRE IDENTIFICATION NO. 57018 3038 CHURCH ROAD LAFAYETTE HILL, PA 19444 ATTORNEY FOR DEFENDANT (610) 940-3900 UNITED MEDICAL BANK VINCENT MARK POLINKA and TERRI L. POLINKA, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs : PENNSYLVANIA V. CIVIL TERM (LAW) UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA NO. 06-6136 CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, JURY TRIAL DEMANDED Defendants AMENDMENT TO MOTION FOR PROTECTIVE ORDER Defendant, United Medical Bank, FSB and nonparty witness Charles Marino, by their attorney, David Banks of Banks & Banks, file this Amendment and pursuant to Cumberland County Local Rule 208.3(a) state as follows: 1. There has been no prior Judge involvement in this matter. 2. There is no Agreement between counsel as to this Motion. Respectfully Sub BANKS & B= Dated: d o BY: Dav' arks, Esquire Id fication No. 57018 3 8 Church Road Lafayette Hill, PA 19444 (610) 940-3900 CERTIFICATE OF SERVICE I, David Banks, do hereby certify that on this / day of June, 2007, I caused a true and correct copy of the foregoing Amendment to Defendant United Medical Bank, FSB and Charles Marino's Motion for Protective Order to be served upon the following counsel via United States First-Class Mail, postage pre-paid to: Joseph K. Goldberg, Esquire THE LAW OFFICE OF JOSEPH K. GOLDBERG 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 David B , Esquire Attorney #r United Medical Bank, FSB ? ? d "• t OD C 3 L L ? - . .. VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs VS. UNITED MEDICAL BANK, FSB, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as Successor Trustee to J.P. Morgan Chase, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-6136 CIVIL : JURY TRIAL DEMANDED IN RE: MOTION FOR PROTECTIVE ORDER OF DEFENDANT UNITED MEDICAL BANK, FSB AND CHARLES MARINO AND PLAINTIFFS' CROSS-MOTION FOR PAYMENT OF REASONABLE EXPENSES AND ATTORNEY'S FEES ORDER AND NOW, this day of June, 2007, argument on the above-captioned motions is set for Thursday, August 2, 2007, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, - '/ (,?' x y / Kevin . Hess, J. oseph K. Goldberg, Esquire For the Plaintiffs /avid Banks, Esquire For Defendant United Medical Bank ./oseph F. Riga, Esquire A For Defendants Deutsche Bank and Bank of New York :rlm I ; 1111._ 'JI " I ;,!1'1 r 100Z IGIIJ I BANKS & BANKS BY: DAVID BANKS, ESQUIRE IDENTIFICATION NO. 57018 3038 CHURCH ROAD LAFAYETTE HILL, PA 19444 (610) 940-3900 ATTORNEY FOR DEFENDANT UNITED MEDICAL BANK VINCENT MARK POLINKA and TERRI L. POLINKA, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs : PENNSYLVANIA V. CIVIL TERM (LAW) UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA NO. 06-6136 CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, Defendants SUGGESTION OF BANKRUPTCY TO THE PROTHONORARY: On July 27, 2007, Plaintiffs Vincent Mark Polinka and Terri L. Polinka filed a Chapter 7 Petition for Bankruptcy in the United State Bankruptcy Court for the Middle District of Pennsylvania, No. 1-07-02303. Respectfully Submitted, BANKS & BANKS Dated: I)T4. BY: r David Banks, Esquire _ Identification No. 57018 3038 Church Road Lafayette Hill, PA 19444 (610) 940-3900 CERTIFICATE OF SERVICE I, David Banks, do hereby certify that on this 27th day of July, 2007, I caused a true and correct copy of the foregoing Suggestion of Bankruptcy to be served upon the following counsel via United States First-Class Mail, postage pre-paid to: Joseph K. Goldberg, Esquire THE LAW OFFICE OF JOSEPH K. GOLDBERG 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 B s?yt_y r+ N k BANKS & BANKS BY: DAVID BANKS, ESQUIRE IDENTIFICATION NO. 57018 3038 CHURCH ROAD LAFAYETTE HILL, PA 19444 (6101940-3900 VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs V. UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, ATTORNEY FOR DEFENDANT UNITED MEDICAL BANK : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY : PENNSYLVANIA CIVIL TERM (LAW) : NO. 06-6136 Defendants PRAECIPE TO WITHDRAW DEFENDANT UNITED MEDICAL BANK AND NON-PARTY WITNESS CHARLES MARINO'S MOTION FOR PROTECTIVE ORDER TO THE PROTHONORARY: Kindly withdraw the Motion for Protective Order filed by Defendant United Medical Bank and Non-Party Witness Charles Marino filed on or about May 16, 2007. Respectfully Submitted, BANKS & BANKS Dated: 'a,' z ?? - U , Da ' anks, Esquire ntification No. 57018 3038 Church Road Lafayette Hill, PA 19444 (610) 940-3900 i ''1 16 CERTIFICATE OF SERVICE I, David Banks, do hereby certify that on this 27th day of July, 2007, I caused a true and correct copy of the foregoing Praecipe to Withdraw Defendant United Medical Bank, FSB and Charles Marino's Motion for Protective Order to be served upon the following counsel via United States First-Class Mail, postage pre-paid to: Joseph K. Goldberg, Esquire THE LAW OFFICE OF JOSEPH K. GOLDBERG 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 David Banks, Esquire Attorney for United Medical Bank, FSB C Pn ? m F w n -O x? Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 j go ldberg@ssbc-law. corn PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs CIVIL TERM (LAW) V. UNITED MEDICAL BANK, FSB, NO. 06-6136 DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as successor Trustee to J.P. Morgan Chase, JURY TRIAL DEMANDED Defendants MOTION TO ENFORCE SETTLEMENT BETWEEN PLAINTIFFS AND UNITED MEDICAL BANK, FSB (WITHOUT CONCURRENCE) Plaintiffs, by and through their attorney, Joseph K. Goldberg, move this Court to enforce their settlement with Defendant United Medical Bank, FSB (hereinafter "UMB"), as follows: 1. Judge Hess has previously considered a Motion for Protective Order in this case. 2. Counsel for both non-moving parties have indicated that they do not concur in this Motion. 3. In this action, the Plaintiffs alleged that UMB, through its employees, made misrepresentations which induced the Plaintiffs to enter into mortgage refinancing, which included first and second mortgage loans, under terms which were detrimental to the Plaintiffs. 4. Plaintiffs also included as defendants the two entities which acquired the first and second mortgage loans from LIMB. Those two entities used a mortgage loan servicer named Homecomings to service the two loans, and, for purposes of this Motion, shall be referred to jointly as "Homecomings." Both entities are represented herein by the same attorney. 5. Plaintiffs had filed a Chapter 7 bankruptcy Petition, which stayed this matter. They received their bankruptcy discharge on December 17, 2007. See Exhibit A, attached. 6. Soon after the bankruptcy discharge, the Plaintiffs entered into settlement negotiations with UMB and with Homecomings. All parties were aware that the others were engaged in settlement discussions. 7. As negotiations progressed, it became apparent that settlement with Homecomings would be limited to modifications of both mortgages, while settlement with LIMB would be only for payment by UMB to Plaintiffs of a sum of money. 8. On January 5, 2009, counsel for UMB sent Plaintiffs' attorney an e-mail offering to settle the claims against UMB by paying Plaintiffs $7,500.' 9. On February 7, 2009, counsel for Homecomings sent an e-mail to Plaintiffs' attorney acknowledging an agreement to settle that part of the case. 10. The settlement between Plaintiffs and Homecomings has been 'The e-mail contained a deadline of January 12, 2009, to accept the settlement offer; however, counsel for UMB and Plaintiffs had a number of conversations and e- mail correspondences about that offer remaining open until settlement with Homecomings was accomplished. 2 consummated. Those parties have executed a written agreement, and the mortgages have been modified. 11. On approximately February 10, 2009, counsel for Plaintiffs and UMB spoke by telephone, at which time counsel for Plaintiffs informed UMB's attorney of the settlement with Homecomings, and that Plaintiffs accepted the $7,500 offer to settle their claims against UMB. Counsel for UMB was to draft the settlement document. 12. Several days later, Plaintiffs's counsel was informed by UMB's attorney that Homecomings was asking UMB for contribution to Homecomings' settlement with Plaintiff, and would not provide a release to UMB without that payment. 13. There had never been any conversation or correspondence between Plaintiffs and LIMB in which the $7,500 payment by UMB to Plaintiffs was in any way contingent on or connected to UMB obtaining a release from Homecomings. 14. There are no cross-claims of any sort filed in this case. 15. The payment of contribution and obtaining releases between Homecomings and UMB are matters beyond the control of Plaintiffs. They were never contemplated to be terms of the settlement between Plaintiffs and UMB. 16. UMB's is attempting to impose conditions on the settlement with Plaintiffs that were never contemplated by the parties in their negotiations. 17. Plaintiffs remain ready to comply with the negotiated terms of the settlement, and will dismiss with prejudice their case against UMB in exchange for the agreed-to payment of $7,500. 18. UMB has no justification for not complying with the terms of the settlement negotiated with the Plaintiffs. 3 WHEREFORE, the Plaintiffs respectfully request that this Honorable court grant this Motion, and issue an Order requiring Defendant United Medical Bank to pay the sum of $7,500 to the Plaintiffs, in exchange for their filing a Praecipe to Discontinue with Prejudice. Respectfully submitted, 70 eGold r Esquire AAt rny ID No. 82 080 Linglesto Road, Suite 106 Harrisburg, P 17110 (717)703-36 Date: Attorney for Plaintiffs / 4 EXHIBIT A OFIS(O icial Fom 18x12107) UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF PENNSYLVANIA In M D*WW.) (s e(a) iced by OW *V,*s) is duo 1W 8 Yom, W,+, ft .,J4 W. aIw bade): Vincent mark Poii" 829 Fe" M Street Mechanicsburg, PA 17055 Chapter 7 Can No. 1:07-bin-02303-RNO Terri L. Poliab 829 F "Meld Street Mecbanicsbucg, PA 17055 Lest fow diets of good-so=", hx ividwi Teswyo+-Wontilkm6M Enployw Tex-Wattificetioa No(s)(if 00 xxx-xx-7568 xxx-xx--0371 DISCHARGE OF DEBTOR It appearing that the debtor is entidod to a discharge, IT IS ORDERED: Tho debtor is granted a discharge under section 727 of tits 11, United States Code, (the Bm*n4*y Code). BY THE COURT Dated: Iffier 17.2W 6Z4ot u. 0?45 Honorable Robert N. Opel United States BanbWtcy Judge SEE THE BACK OF THIS ORDER FOR IMPORTANT INFORMATION. This docw mw h ekdmakdly sigwd and flkd on die sane dwe. Can 1:07-bk-02303-RNO Doc 27 Filed 12117/07 Enured 12/17/0710:3: I " Pipe 1 a 2 CERTIFICATE OF SERVICE /?tl I, the undersigned, hereby certify that on theday of , 2009, served a copy of the foregoing document, by first-class mail, postage prepaid, upon the following: Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second floor Bryn Mawr, PA 19010 Attorney for Defendants Deutsche Bank National Trust Company and Bank of New York and David B. Banks, Esquire Banks & Banks 3038 Church Road Lafayette Hill, PA 19444 Attorney for Defendant United Medical Bank, FSB OF THE 2109 A R 15 AI 11 t{ 3 t IIV `., r„ T ? . APR 2009 Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 j goldberg@ssbc-law.com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, : : CIVIL TERM (LAW) Plaintiffs V. UNITED MEDICAL BANK, FSB, NO. 06-6136 DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as successor Trustee to J.P. Morgan Chase, JURY TRIAL DEMANDED Defendants RULE TO SHOW CAUSE UPON CONSIDERATION of the Motion to Enforce Settlement Between Plaintiffs and United Medical Bank, FSB, filed herein by the Plaintiffs, it is this /7' day of 2009, ORDERED, that a Rule is hereby issued upon the Defendants to show cause, if any they have, why the relief sought by the Plaintiffs zo should not be granted. This Rule is returnable t a"C' fir.- l+ca,..a? FOR THE COURT: By: ' ' J. vl(?o ies: Joseph K. Goldberg, Esq., 2080 Linglestow oad, Harrisburg, PA 17110; avid B. Banks, Esq., 3038 Church Road, Lafayette Hill, PA 194441J(5-s-eph F. iga, Esq., 842 West Lancaster Avenue, Second Floor, Bryn Mawr, PA 19010 r_ C_-3 r-s co Ste-: Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 j goldberg@ssbc-1 aw. com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, CIVIL TERM (LAW) Plaintiffs V. UNITED MEDICAL BANK, FSB, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as successor Trustee to J.P. Morgan Chase, NO. 06-6136 JURY TRIAL DEMANDED Defendants PRAECIPE TO DISCONTINUE AS TO DEFENDANTS DEUTSCHE BANK NATIONAL TRUST COMPANY AND BANK OF NEW YORK TO THE PROTHONOTARY: Please mark the above-captioned case "Discontinued" as to Defendant Deutsche Bank National Trust Company and Defendant Bank of New York. The Plaintiffs' case against Defendant United Medical Bank, FSB shall remain open. X-] ,Cttorney ID No. 4 1080 Ling lesto oad, Suite 106 Harrisburg, PA 110 (717)703-3600 Attorney for Plaintiffs CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the/64d . ay of , 2009, served a copy of the foregoing document, by first-class mail, postage prepaid, upon the following: Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second floor Bryn Mawr, PA 19010 Attorney for Defendants Deutsche Bank National Trust Company and Bank of New York and David B. Banks, Esquire Banks & Banks 3038 Church Road Lafayette Hill, PA 19444 Attorney for Defendant United Medical Bank, FSB flr_E':-,3,,- iCE F THE P, r a'.-?r?NrDTAP.Y 2009 APR 20 P 3: 5 5 4 ,.r ? Ewe t tk?hi 'N t ,_p.r $..oo PD Ate' 041aaav aa4oa-l BANKS & BANKS BY: DAVID BANKS, ESQUIRE IDENTIFICATION NO. 57018 3038 CHURCH ROAD LAFAYETTE HILL, PA 19444 ATTORNEY FOR DEFENDANT (610) 940-3900 UNITED MEDICAL BANK VINCENT MARK POLINKA and TERRI L. POLINKA, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs : PENNSYLVANIA V. CIVIL TERM (LAW) UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA NO. 06-6136 CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, Defendants DEFENDANT UNITED MEDICAL BANK FSB'S RESPONSE TO PLAINTIFFS' MOTION TO ENFORCE SETTLEMENT BETWEEN PLAINTIFFS AND UNITED MEDICAL BANK, FSB Defendant United Medical Bank, FSB, (hereinafter, "United Medical Bank"), by and through its attorneys, David Banks and Banks & Banks files the within response to Plaintiffs' Motion to Enforce Settlement Between Plaintiffs and United Medical Bank and states as follows: 1. Admitted. 2. Admitted. 3. Denied. This averment is denied to the extent that Plaintiffs' Complaint is a written document that speaks for itself. Plaintiffs' characterization and/or interpretation of that writing is denied. 4. Denied. This averment is denied to the extent that Plaintiffs' Complaint is a written document that speaks for itself. Plaintiffs' characterization and/or interpretation of that writing is denied. 5. It is admitted that Plaintiffs had filed a Chapter 7 Bankruptcy Petition, which stayed this matter. The remainder of this averment is denied to the extent that Exhibit "A" is a written document that speaks for itself. Plaintiffs' characterization and/or interpretation of that writing is denied. 6. Admitted in part; denied in part. It is admitted that the Plaintiffs entered into settlement negotiations with United Medical Bank and with Homecomings. As to the remainder of this avennent, after reasonable investigation, United Medical Bank is without sufficient knowledge and information to respond as to whether all parties were aware that the others were engaged in settlement discussions. 7. Admitted in part; denied in part. It is admitted that the Plaintiffs and United Medical Bank had an agreement in principle as to the amount to be paid by United Medical Bank. By way of further answer, the amount to be paid by United Medical Bank was only one of many other terms and conditions of the proposed settlement. None of the other terms and conditions were agreed to or even discussed by the parties. After reasonable investigation, United Medical Bank is without sufficient knowledge and information to respond to the remainder of this averment. 8. Denied. This averment is denied to the extent that the e-mail is a written document that speaks for itself. By way of further answer, the $7,500.00 payment was only one of the terms of the agreement. The other terms had not been agreed to or even discussed. 9. Denied. After reasonable investigation, United Medical Bank is without sufficient knowledge and information to respond to this averment. 10. Denied. After reasonable investigation, United Medical Bank is without sufficient knowledge and information to respond to this averment. 11. Admitted in part; denied in part. The agreement in principle as to the amount being paid by United Medical Bank was contingent upon agreement to the other material terms and conditions of the settlement agreement. 12. Admitted. 13. Denied. By way of further answer, Plaintiffs and United Medical Bank had agreed on an amount to be paid by United Medical Bank but had not agreed on the terms and conditions of the settlement document. 14. Admitted. 15. Denied. By way of further answer, United Medical Bank requested a global release from all parties; however, Defendant Homecomings would not agree to such a release. Accordingly, there was no meeting of the minds as to the terms and conditions of the settlement agreement. 16. Denied. By way of further answer, the parties had not discussed the remaining terms and conditions of the settlement agreement. The only term of settlement which had been agreed to was the settlement amount. No other material terms were agreed upon. 17. Denied. After reasonable investigation, United Medical Bank is without sufficient knowledge and information to respond to this averment. 18. Denied. By way of further answer, United Medical Bank and Plaintiffs had agreed as to an amount for settlement. No other material terms were discussed or agreed upon. A settlement document and release had not been circulated and the parties were still negotiating its material terms. WHEREFORE, Defendant United Medical Bank, FSB respectfully requests that Plaintiffs' Motion to Enforce Settlement Between Plaintiffs and United Medical Bank, FSB be DENIED. Respectfully su BANKS & BAi Date: d Y' Z 9* 0 9 BY: CERTIFICATE OF SERVICE I, David Banks, do hereby certify that on this Z ,P,417 day of April, 2009, I caused a true and correct copy of the foregoing Response to Plaintiffs' Motion to Enforce Settlement to be served upon the following counsel via United States First-Class Mail, postage pre-paid to: Joseph K. Goldberg, Esquire The Law Office of Joseph K. Goldberg 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 Joseph F. Riga, Esquire McDowell Riga 842 West Lancaster Avenue Second Floor Bryn Mawr, n PA 19010 .k, FSB RE y- AFY NO HAY -?; PH 2: 28 VINCENT MARK POLINKA and TERRI L. POLINKA, : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY Plaintiffs : PENNSYLVANIA V. CIVIL TERM (LAW) UNITED MEDICAL BANK, FSB, HOMECOMINGS FINANCIAL USA NO. 06-6136 CORPORATION and RESIDENTIAL FUNDING USA CORPORATION, Defendants ORDER AND NOW, this p`t C1 day of ?j? did , 2009, upon consideration of Plaintiffs' Motion to Enforce Settlement Between Plaintiffs and United Medical Bank, FSB, and United Medical Bank, FSB's response in opposition thereto, it is ORDERED "aj at 9' 3tf that an argument on this issue will take place on /9 aZ tl 11 a.m.Aprm. in the Cumberland County Courthouse, Court Room Number. BY THE COURT: , J. ?l *0 •C" - q- 43 •? J?tf ot.? '? b0111-07 t, 71 IjT9 VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs vs. UNITED MEDICAL BANK, FSB, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as Successor Trustee to J.P. Morgan Chase, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-6136 CIVIL : JURY TRIAL DEMANDED IN RE: MOTION TO ENFORCE SETTLEMENT BEFORE HESS J. ORDER AND NOW, this 13 ~ day of July, 2009, the motion of the plaintiffs to enforce settlement is DENIED. BY THE COURT, ,'---Joseph K. Goldberg, Esquire g, e For the Plaintiffs /vid Banks, Esquire For Defendant United Medical Bank Joseph F. Riga, Esquire For Defendants Deutsche Bank and Bank of New York Am (? TF IA, VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs vs. UNITED MEDICAL BANK, FSB, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as Successor Trustee to J.P. Morgan Chase, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-6136 CIVIL JURY TRIAL DEMANDED IN RE: MOTION TO ENFORCE SETTLEMENT BEFORE HESS, J. OPINION AND ORDER Vincent Polinka and Terri Polinka ("Plaintiffs") brought suit against United Medical Bank, FSB ("United Medical"), Homecomings Financial USA Corp. ("Homecomings"), and Residential Funding USA Corp. ("Residential") as a result of alleged misrepresentations by UMB which induced Plaintiffs to refinance their first and second mortgages under detrimental terms. Plaintiffs received their discharge from Chapter 7 bankruptcy on December 17, 2007, and shortly after, Plaintiffs entered separate settlement negotiations with United Medical and Homecomings. Plaintiffs executed a written settlement agreement with Homecomings whereby the mortgages at issue were modified. Communication between Plaintiffs and United Medical reached the point of an agreement in principle of a settlement for $7,500. Other material terms had yet to be negotiated and would be included in a settlement agreement to be drafted by United Medical. Several days following Plaintiffs' agreement to the settlement amount, United Medical learned that Homecomings NO. 06-6136 CIVIL sought a $30,000 contribution from United Medical toward the cost of its own settlement with Plaintiffs and would not release United Medical without that payment. Currently, there are no cross-claims between United Medical and Homecomings in this case. As a result, United Medical withdrew from its own settlement discussions with Plaintiffs, leading to Plaintiffs' Motion to Enforce Settlement, directed at United Medical. DISCUSSION There is a strong judicial preference favoring the voluntary settlement of lawsuits, for obvious reasons such as judicial economy. See, e.g., Rothman v. Fillette, 503 Pa. 259, 266, 469 A.2d 543, 546 (1983). The enforceability of settlement agreements is evaluated under principles of contract law. See, e. g., Ragnar Benson, Inc. v. Hempfield Tw. Mun. Auth., 916 A. 2d 1183, 1188 (Pa.Super. 2007). Both oral settlements and written agreements are valid and enforceable forms of settlement agreements. See, e.g., Sociedad Comercializadora y De Servicios Unifrutti Traders Limitada v. Quizada, 434 Pa.Super. 48, 56, 641 A.2d 1193, 1197 (1993). Because principles of contract law govern the enforceability of settlement agreements, the minds of the parties must meet upon all of the material terms, as well as the subject matter, of the agreement in order for a purported settlement agreement to be enforceable. See, e.g., Porreco v. Maleno Developers, Inc., 761 A.2d 629, 632-33 (Pa.Cmwlth. 2000). Courts will enforce settlement agreements if all material terms are agreed upon. See, e.g., Century Inn, Inc. v. Century Inn Realty, 358 Pa.Super. 53, 58, 516 A.2d 765, 766, 767 (1986). Additionally, a valid bilateral contract may exist even though the promise of one party to perform is qualified by a condition other than the other party's performance. Main Line Theatres, Inc. v. Paramount Film Distrib. Corp., 298 F.2d 801, 804 (3d Cir. 1961) (holding that 2 NO. 06-6136 CIVIL an agreement of parties to settle upon defendants' promise to pay $10,000, conditioned upon success of pending negotiation for settlement of eight companion suit, was a valid settlement agreement). See also RESTATEMENT (SECOND) CONTRACTS §§ 224-230. A condition cannot, however, make the overall promise illusory or allow one party to avoid performance at will. Main Line Theatres, Inc., 298 F.2d at 804, citing RESTATEMENT, CONTRACTS § 79. Plaintiffs point the court to the Superior Court's decision in Mastroni-Mucker v. Allstate Insurance Company, 2009 PA Super 101 (2009). In Mastroni-Mucker, the court addressed the issue of whether the plaintiffs' post-trial motion to enforce settlement against defendants was properly denied by the trial court. On June 8, 2007, a jury was selected and the trial began. Mastroni-Mucker at ¶ 2. At the conclusion of proceedings on June 14, Ricketti, the attorney for the defendant roofing company offered the plaintiffs $45,000 to settle the case. Mastroni- Mucker at ¶ 3. The next day, after the plaintiffs rejected this offer, the defendants presented their closing arguments, and the court recessed for lunch prior to the plaintiffs' rebuttal argument. Id. During the lunch break, Ricketti offered the plaintiffs $60,000 to settle. Id. The plaintiffs' attorney informed Ricketti that her clients had accepted the $60,000 settlement offer. Id. Prior to the jury's return for rebuttal arguments and instruction by the court, the parties informed the court of a settlement agreement in principle. Id. Because the settlement was not final in the judgment of the trial judge, the judge next charged the jury, which deliberated for an hour. Mastroni-Mucker at ¶¶ 3-4. Ricketti then claimed that his clients had withdrawn the settlement offer upon hearing news of the verdict. Mastroni-Mucker at ¶ 4. After the plaintiffs' attorney unsuccessfully argued that the settlement offer was accepted before it was purportedly withdrawn, the court directed the verdict to be read. Mastroni-Mucker at ¶T 4-5. Following the 3 } NO. 06-6136 CIVIL verdict, which favored the defendants, the plaintiffs' post-trial motion to enforce the purported settlement agreement was denied. Mastroni-Mucker at ¶ 5. The Superior Court ultimately reversed the trial court's denial of the plaintiff's motion to enforce settlement. In addressing the issue of whether a valid settlement agreement existed despite the absence of a written memorial of any agreement, the court first pointed to the fact that a settlement agreement was placed on the record in open court by attorneys for all of the parties. Mastroni-Mucker at ¶ 13. The scope of the settlement agreement on the record was also clearly articulated, encompassing a general release of the defendant roofing company and the individual owners of that company, as well as an indemnification and defense in the release for any future claims. Mastroni-Mucker at ¶ 14. The discussions of the settlement agreement on the record never contained anything to indicate that a dispute to any material terms of the settlement agreement existed, and therefore, it should have been enforced by the trial court. Id. Plaintiffs also direct the court's attention to Birdy v. Maharam, 81 Pa. D. & CAth 95 (Allegheny Co. 2006). In Birdy, the court addressed the issue of the reasonableness of the time between the making and acceptance of a settlement offer. The defendants' claims adjuster gave the plaintiffs' attorney their "best and final offer." Birdy at 97. The plaintiffs' attorney then spoke to his clients, who decided to accept the offer. Id. The next morning, the plaintiffs' attorney called defendants' claims adjuster to accept the offer on behalf of his clients. Id. In response, the claims adjuster asked if the plaintiffs had filed a writ of summons, and after being told that they had not, he informed the plaintiffs' attorney that the offer was withdrawn. Id. The plaintiffs then filed a motion to enforce settlement, which the court granted, saying that the 4 NO. 06-6136 CIVIL undisputed facts would not permit a jury to find that the plaintiffs were unreasonable in accepting the defendants' final offer within 24 hours of its making. Birdy at 98. Both Mastroni-Mucker and Birdy are distinguishable from the matter sub judice. Mastroni-Mucker dealt with facts that are far more clear-cut than in the instant case. Here, for example, there were never any settlement discussions on the record in open court, which would certainly weigh heavily in favor of enforcement. See, e.g., United States v. Sforza, 326 F.3d 107, 115-16 (2d Cir. 2003); Wilson v. Wilson, 46 F.3d 660, 666 (7th Cir. 1995). Additionally - and more importantly - the parties never agreed upon the essential terms of a settlement agreement; the only term to which agreement was reached was the amount of money to be exchanged. Essential terms remained unresolved; chief among these was addressing the outstanding possibility of litigation between United Medical and Homecomings. It was reasonable to anticipate that further negotiations to address the outstanding terms of the settlement agreement would be necessary. We agree with the defendant, United Medical, that there was not a sufficient meeting of the minds in this case to warrant the enforcement of a purported settlement. ORDER AND NOW, this /7' day of July, 2009, the motion of the plaintiffs to enforce settlement is DENIED. BY THE COURT, 5 r NO. 06-6136 CIVIL Joseph K. Goldberg, Esquire For the Plaintiffs David Banks, Esquire For Defendant United Medical Bank Joseph F. Riga, Esquire For Defendants Deutsche Bank and Bank of New York Arn 6 Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 j goldberg@ssbc-law. com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, CIVIL TERM (LAW) Plaintiffs V. NO. 06-6136 UNITED MEDICAL BANK, FSB, et al., Defendants JURY TRIAL DEMANDED PLAINTIFFS' MOTION FOR APPELLATE CERTIFICATION PURSUANT TO 42 PA C S §702(b) AND AMENDMENT OF ORDER PURSUANT TO PA R.A.P. 1311(b (WITHOUT CONCURRENCE) AND NOW COME Plaintiffs, by and through their attorney, Joseph K. Goldberg, and file their Motion for Appellate Certification Pursuant to 42 Pa. C.S. §702(b) and Pa. R.A.P. 1311(b), with respect to the July 13, 2009, Order of The Honorable Kevin A. Hess denying the Plaintiffs' Motion to Enforce Settlement, and in support thereof aver as follows: Abbreviated Procedural History The Plaintiffs filed suit against three defendants for misrepresentations made in connection with Plaintiffs' mortgage refinancing. That transaction resulted in new first and second mortgages. Defendant United Medical Bank was the loan broker and originator, and the other two defendants are the holders of the mortgages. The holders are jointly referred to as "Homecomings," as the servicer of both loans was a Homecomings entity. 2. During the course of the litigation, the Plaintiffs and Homecomings entered into settlement negotiations which would result in modifications to the mortgages. 3. At the same time, Plaintiffs were also negotiating with United Medical Bank toward a settlement in which United Medical would pay an agreed sum to settle the claims against it. 4. All parties were aware of negotiations with the other parties. 5. Eventually, United Medical Bank extended an offer of $7,500. 6. Plaintiffs felt it was necessary for them to first settle with Homecomings before accepting the monetary offer of United Medical Bank. Plaintiffs' counsel informed the attorney for United Medical Bank that they were going to accept the offer as soon as they finalized settlement with Homecomings. 7. Upon finalizing the settlement with Homecomings, Plaintiffs' attorney notified United Medical Bank's attorney that they accepted the $7,500 offer. 8. Several days later, after the lawyers for Homecomings and United Medical Bank spoke, the attorney for United Medical Bank informed Plaintiffs' counsel that the settlement offer was being withdrawn because Homecomings would not provide United Medical Bank with a release. 9. Resolution of any possible claims between the Defendants had never been a subject of the negotiations between Plaintiffs and United Medical Bank, and had never been made a condition of the offer by United Medical Bank. 10. Thereafter, Plaintiffs filed a Motion to Enforce Settlement. United Medical Bank filed an opposition thereto, and oral argument was held before Judge Hess. 2 11. On July 13, 2009, Judge Hess issued his Opinion and Order denying Plaintiffs' Motion. 12. This Motion is filed within thirty days of that Order, making it timely under Pa. R.A.P. 1311(b). Reasons Supporting Appellate Certification 13. 42 Pa. C.S. § 702(b) provides that when an order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate termination of the matter, it shall so state in the order. Pa. R.A.P. 1311 allows a party to seek appeal of an interlocutory Order, such as the July 13, 2009, Order of Judge Hess, if it meets the standard of § 702(b). To be considered for appeal, the order in question must contain the language specified in § 702(b). 14. The Court's July 13, 2009, Order involves a controlling question of law to which there is substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate termination of the matter. 15. The question at issue is whether the parties had reached an agreement of all material terms of the proposed settlement prior to United Medical Bank's withdrawal of its offer. Plaintiffs assert that since United Medical Bank had never made its offer contingent on receiving a release from Homecomings, such release was not a material term of the settlement; therefore, the parties had reached an enforceable settlement agreement. Century Inn, Inc. v. Century Inn Realty, 358 Pa. Super. 53, 516 A.2d 765 (1986). 16. Since there is a strong judicial preference for the parties settling lawsuits, 3 . 1 the matter should be certified for appeal. See Rothman v. Fillette, 503 Pa. 259, 469 A.2d 543 (1983). 17. In the event the Superior Court accepts this matter for appeal, and it finds in favor of the Plaintiffs, the litigation will be terminated. This would help achieve the ends promoted by 42 Pa. C.S. § 702(b), which authorizes interlocutory appeals. 18. Concurrence was sought from counsel for United Medical Bank, but he has indicated that his client does not concur in this Motion.' WHEREFORE, Plaintiffs respectfully request that this Honorable Court amend the language of the Court's July 13, 2009, Order so that it satisfies the requirement for them to seek permissive interlocutory appeal under 42 Pa. C.S. §702(b). Respectfully submitted, Date: e 1D d 2 Jos Aft-K--Goldberg, t AA(Orney ID No. 46782 2080 Linglestown RFO Harrisburg, PA 17(717)703-3600 Attorney for Plaintiffs re Suite 106 'The Plaintiffs discontinued their action against the Homecomings defendants by Praecipe filed April 20, 2009. 4 CERTIFICATE OF SERVICE OK I, the undersigned, hereby certify that on the /0' day of , 2009, served a copy of the foregoing document, by first-class mail, postage prepaid, upon the following: Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second floor Bryn Mawr, PA 19010 Attorney for Defendants Deutsche Bank National Trust Company and Bank of New York and David B. Banks, Esquire Banks & Banks 3038 Church Road Lafayette Hill, PA 19444 Attorney for Defendant United Medical Bank, FSB OF 7h v P t? ? ;.. Ird? P i;?nr? ?l lj` j? Y;j n ' 2j1009 FtILI y i V FI1 {' L.u VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs vs. UNITED MEDICAL BANK, FSB, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as Successor Trustee to J.P. Morgan Chase, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 06-6136 CIVIL : JURY TRIAL DEMANDED IN RE: PLAINTIFFS' MOTION FOR APPELLATE CERTIFICATION AND AMENDMENT OF ORDER ORDER AND NOW, this /3' day of August, 2009, a rule is issued on the defendants to show cause why the relief requested in the within motion ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, Kevin Hess, J. R1TKE e%r 2N9 AUG 13 PM 2= 06 l Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 jgoldberg@ssbc-law.com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs V. CIVIL TERM (LAW) UNITED MEDICAL BANK, FSB, NO. 06-6136 DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as successor Trustee to J.P. Morgan Chase, JURY TRIAL DEMANDED Defendants MOTION TO MAKE RULE ABSOLUTE AND NOW COME Plaintiffs, by and through their attorney, Joseph K. Goldberg, Esquire, who move this Honorable court to make absolute the Order to Show Cause issued August 13, 2009, as follows: 1. On August 10, 2009, the Plaintiffs filed their Motion for Appellate Certification Pursuant to 42 Pa. C.S. § 702(b) and Amendment of Order Pursuant to PA. R.A.P. 1311(b), Without Concurrence. The Motion seeks to have the court modify its July 13, 2009, Order in this case in which it denied the Plaintiffs' Motion to Enforce Settlement. The amendment sought will permit the Plaintiffs to seek interlocutory appellate review of that decision. 2. On August 13, 2009, the Honorable Kevin A. Hess issued an Order for the Defendants to show cause why the Plaintiffs' motion should not be granted. The Rule was returnable 20 days after service. 3. More than twenty days have elapsed since service of the Order, and the Defendants have not filed a response to it. 4. In the absence of any opposition to the Motion, the Plaintiffs are entitled to the relief sought. WHEREFORE, the Plaintiffs respectfully request that the court grant their Motion, and amend the July 13, 2009, Order, to permit them to seek interlocutory appellate review of that decision. Ily bmitted, x p?-ls - dbeY ire 2 orney ID No. 46 80 Linglestown uite 106 Harr isburg, PA (717)703-3600 Attorney for P inti CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the F1 day of , 2009, served a copy of the foregoing document, by first-class mail, postage prepaid, upon the following: Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second floor Bryn Mawr, PA 19010 Attorney for Defendants Deutsche Bank National Trust Company and Bank of New York and David B. Banks, Esquire Banks & Banks 3038 Church Road Lafayette Hill, PA 19444 Attorney for Defendant United Medical Bank, FSB FILED-OFFICE OF THE MOT', MO TARY 2009 SEP -9 FM 12: 4 0 € F a"v ' VAN,,'A I SEP 2009 ?j Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 jgoldberg@ssbc-law.com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs V. UNITED MEDICAL BANK, FSB, et al., Defendants AND NOW, this l9' CIVIL TERM (LAW) NO. 06-6136 JURY TRIAL DEMANDED ORDER day of Qesbsr , 2009, upon consideration the Plaintiffs' Motion for Appellate Certification Pursuant to 42 Pa C.S. §702(b) and Amendment of Order Pursuant to Pa R.A.P. 1311(b), and the absence of any opposition thereto, the motion of the plaintiffs is GRANTED, and the Court's July 13, 2009, Order issued in this case is hereby amended to read as follows: AND NOW, this c2gz4 day of e4 , 2009, the motion of the plaintiffs to enforce settlement is DENIED. This order involves a controlling question of law as to which there is substantial ground for difference of opinion, and immediate appeal from the order may materially advance the ultimate termination of the matter. BY THE COURT, X4. 1 Kevi A. Hess, J. E 4UUYOCr 29 Ate,, 00 J,y' Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 jgoldberg@ssbc-law.com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs V. CIVIL TERM (LAW) UNITED MEDICAL BANK, FSB, NO. 06-6136 DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as successor Trustee to J.P. Morgan Chase, JURY TRIAL DEMANDED Defendants PLAINTIFFS' NOTICE OF APPEAL Notice is hereby given that Plaintiffs, Vincent Mark Polinka and Terri L. Polinka, hereby appeal to the Superior Court of Pennsylvania from the Order entered in this matter on the 29th day of October, 2009. This Order has been entered in the docket on October 29, 2009, as evidenced by the attached copy of the docket entry. Respectfully sub Date: 11-5-1 6? q- JP00 K. Go erg, Esquire Attorney ID o. 46782 2080 Lingl st n Road, Suite 106 Harrisbur , P 17110 (717)703- 00 Attorney for Plaintiffs PYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2006-06136 POLINKA VINCENT MARK ET AL (vs) UNITED MEDICAL BANK FSB ET AL Reference No... Filed......... 10/20/2006 Case Type...... COMPLAINT d Time. ... i 10.07 Ju gment..... on Date .00 Execut 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info POLINKA VINCENT MARK PLAINTIFF GOLDBERG JOSEPH 829 FAIRFIELD STREET MECHANICSBURG PA 17055 POLINKA TERRI L PLAINTIFF GOLDBERG JOSEPH 829 FAIRFIELD STREET MECHANICSBURG PA 17055 UNITED MEDICAL BANK DEFENDANT BANKS DAVID 2200 GEORGETOWN DRIVE SUITE 201 SEWICKLEY PA 15143 TRUE COPY FROM RECORD HOMECOMINGS FINANCIAL USA DEFENDANT In Testimony whereof, I hai-3 unto set my hand CORPORATION and the seal f said Court at Carlisle, Pa. RESIDENTIAL FUNDING USA DEFENDANT This ?? fi4?` c ,", e,- V Gc) COPORATION day of....... .-. ..... ...... ...... ************************************************************ **ryi'V dF**** * Date Entries rY ******************************************************************************** - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 10/20/2006 COMPLAINT ------------------------------------------------------------------- 11/13/2006 PRELIMINARY OBJECTIONS OF DEFTS HOMECOMINGS FINANCIAL LLC AND RESIDENTIAL FUNDING LLC TO THE COMPLAINT OF PLFFS VINCENT MARK POLINKA AND TERRI L POLINKA - BY JOSEPH F RIGA ATTY FOR DEFTS ------------------------------------------------------------------- 1/04/2007 PRAECIPE TO ENTER APPEARANCE - BY DAVID BANKS ATTY FOR DEFT-UNITED MEDICAL BANK FSB ------------------------------------------------------------------- 1/16/2007 AMENDED COMPLAINT - BY JOSEPH K GOLDBERG ATTY FOR PLFFS ------------------------------------------------------------------- 2/16/2007 DEFENDANT UNITED MEDICAL BANK FSB'S ANSWER AND NEW MATTER - BY DAVID BANKS ATTY FOR DEFT ------------------------------------------------------------------- 3/09/2007 ANSWER OF DEUTSCHE BANK NATIONAL TRUST CO AND BANK OF NEW YORK TO AMENDED COMPLAINT WITH DEFENSES - BY JOSEPH F RIGA ATTY FOR DEFTS ------------------------------------------------------------------- 5/21/2007 PLAINTIFF'S OPPOSITION TO MOTION FOR PROTECTIVE ORDER AND ALTERNATIVELY CROSS-MOTION FOR PAYMENT OF REASONABLE EXPENSES AND ATTY'S FEES - BY JOSEPH K GOLDBERG ATTY FOR PLFFS ------------------------------------------------------------------- 5/22/2007 MOTION FOR PROTECTIVE ORDER BY DAVID BANKS ATTY FOR DEFT ------------------------------------------------------------------- 5/30/2007 AMENDMENT TO PLFFS' OPPOSITION TO MOTION FOR PROTECTIVE ORDER AND ALTERNATIVELY CROSS-MOTION FOR PAYMENT OF REASONABLE EXPENSES AND ATTY'S FEES - BY JOSEPH K GOLDBERG ATTY FOR PLFFS ------------------------------------------------------------------- 6/01/2007 PRAECIPE TO ATTACH EXHIBIT TO DEFT UNITED MEDICAL BANK FSB & CHARLES MARINO'S MOTION FOR PROTECTIVE ORDER - BY CANDIDA J FABICK ATTY FOR PLFFS ------------------------------------------------------------------- 6/09/2007 AMENDMENT TO MOTION FOR PROTECTIVE ORDER - BY DAVID BANKS ATTY FOR DEFT/UM BANK FSB ------------------------------------------------------------------- 6/15/2007 ORDER - 06-15-07 - IN RE: MOTION FOR PROTECTIVE ORDER OF DEFT UNITED MEDICAL BANK FSB AND CHARLES MARINO AND PLFFS' CROSS-MOTION FOR PAYMENT OF REASONABLE EXPENSES AND ATTY'S FEES - ARGUMENT 08-02-07 AT 2:30 PM IN CR 4 CUMB CO COURTHOUSE - BY KEVIN A HESS J - COPIES MAILED 06-15-07 PYS511 Cumberland County Prothonotary's Office Page 2 Civil Case Print 2006-06136 POLINKA VINCENT MARK ET AL (vs) UNITED MEDICAL BANK FSB ET AL Reference No... Filed........: 10/20/0007 Case Type...... COMPLAINT Time . Jud eg .00 Execution Date 0/00 0000 Jde Assigned: Jt? Trial . DisPPoaed Desc.: D a sed Date. 0/00/0000 ------------ Case Comments ------------- Hg er Crt 1.: H3. er Crt 2.: 7/31/2007 SUGGESTION OF BANKRUPTCY - PLFFS FILED CHAPTER 7 PETITION FOR - - BANKRUPTCY - BY DAVID BANKS ATTY FOR DEFT UNITED MEDICAL BANK 7/31/2007 PRAECIPE -TO -WITHDRAWDEFENDANT UNITED MEDICAL BANK AND NON-PARTY- - - ITNESS CHARLES MARINOS MOTION FOR PROTECTIVE ORDER - BY DAVID BANKS ATTY FOR DEFT UNITED MEDICAL BANK - ---------------------------------------- - 4/15/2009 MOTIONTO -ENFORCE SETTL ENT BETWEEN-PLFFS AND UNITED MEDICAL -BANK FSB (WITHOUT CONCURRENCE - BY JOSEPH K GOLDBERG ATTY FOR PLFFS 4/3.7/2009 RULE TO-SHOW CAUSE - 49%09 IN RE:-MOTION TO-ENFORCE SETTLEMENT - BETWEEN PLFFS AND UNITDICAL BANK FSB WITHOUT CONCURRENCE - A RULE IS HEREBY ISSUED UPON THE DEFTS TO SHOW CAUSE IF ANY THEY HAVE WHY THE RELIEF SOUGHT BY THE PLFFS SHOULD NOT BE GRANTED - THIS RULE RETURNABLE 20 DAYS AFTER SERVICE - IF AND ANSWER IS FILED SAME SHALL N UDE AN ORDER FOR HEARING - BY KEVIN A HESS J COPIES MAILED 43109_ 4/20/2009 PRAECIPE TO DISCONTINUE AS TO DEFTS DEUTSCHE-BANK-NATIONAL TRUST COMPANY AND BANK OF NEW YORK - BY JOSEPH K GOLDBERG ATTY FOR PLFFS -------------------------------------------- --------------------- 5/Q4/2009 EENNFO CESET?TLEMENT MEDICAL PLFFSgANDEUNITED MOTION FSBT- BY DAVIS BANKS ATTY FOR DEFTS --------------------- 6/01/2009 ORDER-- 6/29/09-IN RE: DEFT UNITED-MEDICAL-BANK FSBSRESPONSE TOPLFFS MOTION TO ENFORCE SETTLEMENT BETWEEN PLFFS A,ND UNITED MEDICAL BANK FSB - ARGUMENT IS SCHEDULED FOR 6181/09 AT 9:30 AM IN CR4 CUMBERLAND COUNTY COURTQUSE - BY KEVIN A HESS J - COPIES MAILED 6/1/09 --------------------------------------------------------------------- 7/13/2009 ORDER 7/13/09 IN RE: MOTION TO ENFORCE SETTLEMENT - MOTION IS DENIED X KEV IN A HESS J - COPIES MAILED 7/13/09 ------------------------------------------------------------------- 8/10/2009 PLAINTIFF'S MOTION FOR APPELLATE CERTIFICATION PURSUANT TO 42 PA CS 702B AND AMENDMENT OF ORDER PURSUANT TO PA RAP 1311E WITHOUT CONCURRENCE - BY JOSEPH K GOLDBERG ATTY FOR PLFFS - -------------- 8/13/2009 8/13/2009 ORDER-- 8/13/09 - IN RE: RULE ISSUED ON DEFTSTO SHOW CAUSE WHY THE RELIEF REQUESTED IN MOTION OUGHT NOT TO BE GRANTED - RULE 3/ 20 DAYS AFTER SVC - BY KEVIN A HESS J - COPIES MAILED RE8/TURNABLE09 9/09/2009 MOTION TO MAKE Ri7LE ABSOLUTE - BY JOSEPH K-GOLDBERG ATTY FOR PLFFS ---_V:__ ---------------------------------------------------------- 10/29/2009 ORDE129/0.9 - PLFFS MOTION FOR APPELLATE CERTIFICATION PURSUANT TO 42 PA CS 702B AND AMENDMENT OF ORDER PURSUANT TO PA RAP 1131B AND THE ABSENCE OF ANY OPPOSITION THERTO THE MOTION F THE PLFFS IS GRANTED - BY KEVIN A HESS J - COPIES MAILED 10/29209 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Inf"47'a"' Fees & Debits Beg Bal P r:n End Bal ***,t?*?r****x?********?c*?rrr*****?* ,ta**?r,r?r?r *****? ?***?,r*********,r******?r,rx****** COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 SUBPOENA 3.00 3.00 .00 AUTH TO REMOVE 8.00 8.00 .00 ------ ------- 66.50 - ------------ .00 6m6-.5-6 PYS511 Cumberland County Prothonotary's office Page 3 Civil Case Print 2006-06136 POLINKA VINCENT MARK ET AL (vs) UNITED MEDICAL BANK FSB ET AL Reference No... Filed........: 10/20/2006 Case Type ..... . COMPLAINT Time. : 0.07 Jud ent..... .00 Executign Date 0/000000 Jt}dre Assigned': Jury Trial... . DigP?osed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- H her Crt 1.: Hi&her Crt 2.: * End of Case Information * CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on the S4day of / OV/ , 2009,1 served a copy of the foregoing Plaintiffs' Notice of Appeal, by first-class mail, postage prepaid, upon the following: Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 Attorney for Defendants Deutsche Bank National Trust Company and Bank of New York David B. Banks, Esquire Banks & Banks 3038 Church Road Lafayette Hill, PA 19444 Attorney for Defendant United Medical Bank, FSB The Honorable Kevin A. Hess Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013 2D lW.oOILRIll*-j ;t 33?? I Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717) 703-3600 jgoldberg@ssbc-law.com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs CIVIL TERM (LAW) V. UNITED MEDICAL BANK, FSB, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as successor Trustee to J.P. Morgan Chase, NO. 06-6136 JURY TRIAL DEMANDED Defendants PLAINTIFFS' STATEMENT REGARDING TRANSCRIPT Pursuant to Pa. R.A.P. 904(c), the undersigned counsel for Plaintiffs states that there is no verbatim record of proceedings which has been requested in conjunction with the Plaintiffs' Notice of Appeal filed November 5, 2009. Date: ///- JW 7 Attorney ID No. 2080 Lingles of Harrisburg 17110 (717)703-3 00 Attorney for Plaintiffs , Suite 106 CERTIFICATE OF SERVICE I the undersigned, hereby certify that on the day of ?2009, served a copy of the foregoing Plaintiffs' Statement Regarding Transcript, by first-class mail, postage prepaid, upon the following: Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 Attorney for Defendants Deutsche Bank National Trust Company and Bank of New York David B. Banks, Esquire Banks & Banks 3038 Church Road Lafayette Hill, PA 19444 Attorney for Defendant United Medical Bank, FSB The Honorable Kevin A. Hess Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013 OF THE P "?`. '.f- "IOTAP.Y 2009 NOV -5 F19 4: d Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 - - --- - -- AOPG3014 Rev.11/12/2009 -CAL Karen Reid Bramblett, Esq. 6upertor Court of Peumovibauia Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary November 12, 2009 RE: Vincent Mark Polinika and Terri L. Polinka Appellant Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www. superior. court. state. Pa.us v. United Medical Bank, FSB, Deutsche Bank National Trust Company, as Trustee and Bank of New York, as successor Trustee to J.P. Morgan Chase 1924 M DA 2009 Trial Court Docket No: 06-6136 Dear Attorney Goldberg Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully yours, Milan K. Mrkobrad, Esq. Deputy Prothonotary /vsl Enclosure cc: David Banks, Esq. Court Reporter The Honorable Kevin A. Hess, Judge Mr. Curtis R. Long, Prothonotary Joseph F. Riga, Esq. 11:27 A.M. Appeal Docket Sheet Docket Number: 1924 MDA 2009 Page 1 of 2 November 12, 2009 CAPTION Vincent Mark Polinika and Terri L. Polinka Appellant Superior Court of Pennsylvania Secure V. United Medical Bank, FSB, Deutsche Bank National Trust Company, as Trustee and Bank of New York, as successor Trustee to J.P. Morgan Chase CASE INFORMATION Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: November 5, 2009 Journal Number: Case Category: Civil CONSOLIDATED CASES Awaiting Original Record Case Type(s): Next Event Type: Receive Docketing Statement Next Event Type: Original Record Received Appellant Pol Pro Se: No IFP Status: No Attorney: Bar No: Address: SCHEDULED EVENT COUNSEL INFORMATION inka, Vincent Mark & Terri L. Appoint Counsel Status: Represented Goldberg, Joseph Keith 046782 Ste 106 Civil Action Law RELATED CASES Next Event Due Date: November 30, 2009 Next Event Due Date: January 4, 2010 2080 Linglestown Rd Harrisburg, PA 17110 Phone No: (717) 703-3600 Fax No: (717) 635-2062 Receive Mail: Yes Receive EMail: No Entail Address: jgoldberg@ssbc-law.com Appellee United Medical Bank, FSB Pro Se: No Appoint Counsel Status: Represented IFP Status: Attorney: Banks, David Bar No: 057018 Law Firm: Banks & Banks Address: 3038 CHURCH RD LAFAYETTE HILL, PA 19444 Phone No: (610) 940-3900 Fax No: (610) 940-0843 Receive Mail: Yes Receive EMail: No EMail Address: 11:27 A.M. Appeal Docket Sheet Docket Number: 1924 MDA 2009 Page 2 of 2 SE November 12, 2009 COUNSEL. INFORMATION Appellee Deutsche Bank National Trust Company and Bank of New York Pro Se: No Appoint Counsel Status: Represented IFP Status: Superior Court of Pennsylvania cure Attorney: Riga, Joseph F. Bar No: 057716 Address: McDowell Riga 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 Phone No: Fax No: Receive Mail: Yes Receive EMail: No EMail Address: FEE INFORMATION' Date Name Receipt Number Fee Amt Paid Amt 11/05/2009 Notice of Appeal 2009-SPR-M-000956 $ 60.00 $ 60.00 AGENCY/TRIAL. COURT INFORMATION Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: October 29, 2009 Judicial District: 09 Documents Received: November 9, 2009 Notice of Appeal Filed: November 5, 2009 Order Type: Order Entered OTN(s): Lower Ct Docket No(s):06-6136 Lower Ct Judge(s): Hess, Kevin A. Judge Original Record Item ORIGINAL RECORD CONTENT Filed Date Content Description Date of Remand of Record: BRIEFING SCHEDULE None None DOCKET ENTRY Filed Date Docket Entry Participant Type Filed By November 5, 2009 Notice of Appeal Docketed Appellant Polinka, Vincent Mark & Terri L. November 12, 2009 Docketing Statement Exited (Civil) Middle District Filing Office 2099 CIO V 16 "; 2: 2 3 .? ;obi { VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs V. UNITED MEDICAL BANK, FSB, et al, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL TERM - LAW NO. 06-6136 CIVIL TERM JURY TRIAL DEMANDED IN RE: TRANSCRIPT OF PROCEEDINGS MOTION TO ENFORCE SETTLEMENT Proceedings held before the HONORABLE KEVIN A. HESS, J., Cumberland County Courthouse, Carlisle, Pennsylvania, on Thursday, June 18, 2009, in Courtroom Number 4. APPEARANCES: JOSEPH K. GOLDBERG, Esquire For the Plaintiffs CANDIDA FABICK, Esquire For United Medical Bank 1 THE COURT: Good morning. This is the civil 2 matter I have at 9:30. Go ahead. 3 MR. GOLDBERG: Thank you, Your Honor. Joseph 4 Goldberg for the plaintiff. It is our motion to enforce the 5 settlement. Just a real brief background to get the Court 6 aware of what the settlement discussions were. The case 7 involved a claim against a mortgage originator and then two 8 other parties who were the holders of the first and second 9 loans that were created through the transaction. 10 Eventually the plaintiffs enter into 11 settlement negotiations with both parties. We were 12 negotiating with the holders of the loan to modify, and at 13 the same time we are negotiating with this particular 14 defendant for the payment of some cash to settle. We had to 15 settle both at the same time because we couldn't settle with 16 one unless the other settled, just because it wouldn't be 17 beneficial to my clients. 18 As the settlement negotiations with the other 19 two parties, the lenders -- excuse me, the holders, 20 progressed, I was in fairly regular contact with counsel for 21 United Medical Bank, keeping him abreast of our settlement 22 negotiations, as he and I were also negotiating the 23 settlement that's in question at the moment. 24 In January of this year, Mr. Banks, who is 25 not. here this morning, but Mr. Banks had sent me an email 2 1 upping his client's offer to $7,500.00. And on January 2 23rd, as I was closing in on the settlement with the other 3 parties, I sent Mr. Banks an email that said we almost have 4 an agreement with the other side. Assuming my clients 5 settle with them as proposed, my clients will accept the 6 $7,500.00 offer from United Medical Bank. I can't give you 7 a definitive yes until the other parties confirm, but I 8 wanted to alert you to this so we can and try and get the 9 whole thing wrapped up expeditiously. 10 What happened next was we did settle with the 11 two holders of those loans. When we finalized that 12 settlement, or at least agreed on the terms, I called Mr. 13 Banks, informed him that we had a settlement, accepted the 14 $7,500.00 and suggested that he might want to prepare the 15 written agreement. 16 Several days later he called me back and said 17 he had spoken with the attorney for the two holders of the 18 loans that we settled with. And Mr. Riga informed Mr. Banks 19 that his clients might assert a claim against United Medical 20 Bank for contribution for what they claim was their loss 21 that they suffered as a result of the loan modification. 22 Up until that point there had never been any 23 kind of conversation whatsoever between me and Mr. Banks for 24 United Medical Bank regarding any other kind of terms other 25 than settlement in the case for payment of $7,500.00. There 3 1 had never been any talk about any kind of global release. 2 In fact, I don't think anybody ever contemplated that 3 somebody would assert a claim. 4 Now, there had been no cross claims filed in 5 this case. Neither defendant had filed anything against the 6 other. I do also want to -- 7 THE COURT: And the others apparently had not 8 settled the case and obviously didn't extinguish your 9 liability, so I am just curious as to what possible claim 10 there could be for a contribution, but maybe I am missing 11 something. 12 MR. GOLDBERG: Well, and I have the same 13 question. I asked both counsel that. Isn't that claim gone 14 by the fact that nobody filed against each other. 15 THE COURT: This isn't a tort case anyway. 16 MR. GOLDBERG: That's correct, Your Honor. 17 THE COURT: This is a contract case. 18 MR. GOLDBERG: It is a fairly simple case. 19 There is a statutory claim as well, but I don't think that 20 the tort analysis would apply in that instance either. 21 THE COURT: No, I wouldn't think so. But, 22 anyway, they are of the impression that it does, wrongly or 23 rightly. Can I enforce a settlement in the face of that? 24 MR. GOLDBERG: Well, the standard that the 25 courts use to determine whether or not a settlement exists 4 1 is a straight contract analysis. Was there an offer -- 2 THE COURT: A meeting of the minds, yes. 3 MR. GOLDBERG: Yes. Now, I want to point out 4 that in the response to our motion, paragraph number seven, 5 the response says admitted in part, denied in part. It is 6 admitted that the plaintiffs and United Medical Bank had an 7 agreement in principle as to the amount to be paid by United 8 Medical Bank. By way of further answer, the amount to be 9 paid by United Medical Bank and any other terms and 10 conditions of the proposed settlement. However, the next 11 sentence Mr. Banks wrote, none of the other terms and 12 conditions were agreed to or even discussed by the parties. 13 But we assert that they weren't discussed by 14 the parties, and they weren't issues to be resolved, because 15 they weren't terms of the agreement. The agreement was very 16 simple. The payment of money, the case would be settled. 17 I do want to point out to the court two 18 cases. One is a 2006 case. It is out of Allegheny County 19 decided by Judge Freedman. And it is reported. It is 81 20 D&C 4th at page ninety-five. And in that case there were 21 oral offers and demands made to settle a personal injury 22 case. And the offer was accepted. After the acceptance, 23 the insurance adjuster who made the offer withdrew the 24 offer. 25 The issue there was whether or not the 5 1 withdrawal of the offer, the revocation of the offer, was 2 appropriate. But the point is that very similarly the only 3 thing discussed was the payment of money in exchange for 4 settlement of the case. And the court found, Judge Freedman 5 found, that that was sufficient and found that there had 6 been a settlement. 7 The other case that I would like to cite the 8 Court to is very new, decided May 29th by the Superior 9 Court. And I have a copy for the Court. But it is not yet 10 reported. I have given a copy to opposing counsel. 11 The facts there are much different than here. 12 There were discussions about other terms. And the extent of 13 the release and -- well, obviously a lot more was involved 14 in there than is involved here. There was discussion on the 15 record because this took place during trial. And eventually 16 a party accepted the settlement offer from the defendants, 17 the plaintiff did. However, there was reluctance to accept 18 the terms that were contained in a written release. The 19 trial court found that there had been no settlement. The 20 Superior Court averred. 21 And I just want to read a couple of things 22 that the court said. Whether or not the plaintiff 23 communicated her acceptance of the terms presented in the 24 rough draft, which is the only document they had, that she 25 reviewed prior to (name inaudible) announcement that the e 6 1 offer was withdrawn is immaterial to the real issue 2 presented in the case. That is did the parties make the 3 signing or approval of a particular form of release an 4 express condition precedent to the settlement itself. 5 Our review of the record finds that they did 6 not so condition the settlement. And the court went on to 7 say further, at no time during their recitation of the terms 8 of the settlement did either counsel for the defendant ever 9 express that the scope of the release was in dispute or the 10 parties' oral agreement was contingent upon future agreement 11 to ongoing negotiations of release terms. 12 So in that situation there actually had been 13 discussion about additional terms. But the court found that 14 that they weren't made an express condition to the 15 acceptance of the settlement. Therefore, the court reversed 16 the trial court and found that the parties had indeed 17 settled the case. 18 THE COURT: I understand. Go ahead. 19 MS. FABICK: Good morning, Your Honor. David 20 Banks couldn't be here this morning. He had a trial in 21 Chester County. So you are stuck with me. 22 My argument is not going to be that lengthy. 23 Our clients are of the opinion that there was no meeting of 24 the minds as far as the entire settlement goes, simply 25 because the only part of the settlement that was agreed upon 7 1 was the amount to be paid. 2 THE COURT: And what else is there in the 3 settlement? 4 MS. FABICK: There was supposed to be a draft 5 settlement and release. 6 THE COURT: And a draft settlement would have 7 set forth the amount and the fact that it was settled? 8 MS. FABICK: Right. And in addition our 9 client -- one of the terms that was important to our client 10 was to be released by the codefendant Homecomings. 11 THE COURT: That's not the plaintiff here? 12 MS. FABICK: Right. That's one of the 13 codefendants. That's the party that's seeking the 14 indemnification or the con tribution. 15 THE COURT: And they are seeking 16 indemnification from that contribution. Is there an 17 indemnification contract f loating around somewhere? 18 MS. FABICK: Contribution. I am sorry, Your 19 Honor, I misspoke. 20 THE COURT: Contribution. On what theory? 21 MS. FABICK: I am not sure. 22 THE COURT: Why do they have the right of 23 contribution against you? 24 MS. FABICK: They were the original holder of 25 the -- 8 1 THE COURT: Well, walk me through that. How 2 do these loans relate? Maybe I didn't understand the facts 3 fully. So let's go over them again. 4 MS. FABICK: Okay. 5 THE COURT: What's the relationship between 6 these parties? 7 MR. GOLDBERG: I would be happy to... 8 THE COURT: Go ahead. What started all of 9 this? 10 MR. GOLDBERG: United Medical Bank originated 11 these two mortgage loans. They were refinances. 12 THE COURT: Okay. 13 MR. GOLDBERG: And the assertion is that 14 there was a misrepresentation made by the broker as to the 15 terms of the loan. And had the plaintiffs known the true 16 nature of the loan, they would not have entered into it. 17 THE COURT: Okay. 18 MR. GOLDBERG: Immediately after -- 19 THE COURT: This refinance would have paid 20 off loans then existing with respect to Homecomings and -- 21 MR. GOLDBERG: No, no, no. 22 THE COURT: That's where I am 23 misunderstanding. 24 MR. GOLDBERG: The loans, after they were 25 made, were immediately assigned to two different trusts, 9 1 which they were securitized. 2 THE COURT: Okay. 3 MR. GOLDBERG: The other parties, I refer to 4 them as Homecomings, because Homecomings ended up being the 5 servicer, but they were the two different trusts that bought 6 these loans. 7 THE COURT: Okay. 8 MR. GOLDBERG: My understanding is, and I 9 don't know if it is really relevant here, but these were not 10 recourse transactions, meaning that normally the trusts have 11 no right to go back against the originator and the signor of 12 those loans. Regardless, Homecomings took the loans. They 13 now own them for all intents and purposes. They, being 14 Homecomings, had the ability to modify the loans. They 15 modified the terms of the loans. By their calculations they 16 suffered a loss of some sort as a result of that. That's 17 where their claim for contribution comes in. 18 THE COURT: But if there is an open question 19 as to the recourse against the originator, then they are 20 right. Then there is an unresolved issue here. 21 MR. GOLDBERG: Correct. Except that nobody 22 has filed claims against each other. 23 THE COURT: Yet. 24 MR. GOLDBERG: Well, the question is whether 25 or not they had to as a result of them both being 10 1 codefendants in the case. 2 THE COURT: And I am not sure I can resolve 3 that issue in this context. I will have to look at it. I 4 understand the issue. Okay. Thank you very much. 5 (End of proceedings) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 CERTIFICATION I hereby certify that the proceedings are contained fully and accurately in the notes taken by me on the above cause and that this is a correct transcript of same. i Barbara E. Graham Official Stenographer The foregoing record of the proceedings on the hearing of the within matter is hereby approved and directed to be filed. A100-4. 19 904!j -? Date Kevi A. Hess, J. Nits h Judicial District 12 FILED-O -DICE OF THE Pkfi ,C`NOTARY 2099 NOY 19 P # 2: S 0 CL?Ivt ? ?R n,4, DEN NS-0jX,: CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, i t 'any, and the docket entries in the following matter: Vincent Mark Polinka and Terri L. Polinka VS. United Medical Bank, FSB, Homecomings Financial USA Corporation and Residential Funding USA Corporation 2006-6136 Civil 1924 MDA 2009 The documerts comprising the record have been numbered from No.1 to 176 , and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 12/18/2009 . Curtis ong, Prothonotary Regina Lebo An addit;on.i! cope of this certificate is enclosed. Please sign and date copy, thereby acknowlt d(,in„ receipt of this record. Date Signature & Title Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of Cumberland in the Commonwealth of Pennsylvania 1924 MDA 2Q09 to No. 06-6136 .iy 1 Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Vincent Mark Polinka and Terri L. Polinka Vs. United Medical Bank, FSB, Homecomings Financial USA Corporation and Residential Funding USA Corporation **SEE CERTIFIED COPY OF THE DOCKET ENTRIES** Commonwealth of Pennsylvania County of Cumberland ss: In TESTIMONY WHEREOF, I have hereunto this 18th 1, 0irt-iS R_ Tnng , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Plaintiff, and Uni ted Medi cat Bank; FSB t=t.al _ Defendant q as the same remains of record before the said Court at No. 06-613.6 of riyi 1 Term, A.D. 19 . set my hand and affixed the seal of said Court day of December A. D., WaDO.. f ( Prothonotarv 1. 1 /1 Fr7gar B. Bayley President Judge of the Ni Judicial District, composed of the County of Cumberland, do certify that 0irtifi R_ T.nng , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of Q unberland in the Commonwealth of Pennsylvania, duly commissioned and qualified.to-all of whose acts as such full faith and credit are and ought to be given as well in Courts of judicaty e as elsewl ere,-and.that the said record, certificate and attestation are in due form of law and made ly the proper officef President Ju 1e Commonwealth of Pennsylvania County of Cumberland ss. 1, Curtis R. Long , Prothonotary of the Court of Common Pleas in and for the said County, do certify that the Honorable Edgar B. Bayley _ by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court this 18th day of A.D.2-. Prothonotan ?17 . ?. ?t'? ?. ? "'? N ?'?G?(( ?• 'J- tV .? ro ? ? v .? ? ? ? ? ? ? ? ?. ? ?, ?a ? ?? ? x ?? N o ? o Z I z T ? ? "" .s G G U U ? ? `o ? ? i+ y «? ?: o ? ?- ,? T L r y VU.JG G'Y 1G10GVV7 rLV1_iiviiu L_aty ? Vi11l..=C rayc _L PYS510 Civil Case Print 2006-06136 POLINKA VINCENT MARK ET AL (vs) UNITED MEDICAL BANK FSB ET AL Reference No..: Filed........: 10/20/2006 Case Type.....: COMPLAINT Time.........: 10:07 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1924MDA2009 Higher Crt 2.: ******************************************************************************** General Index Attorney Info POLINKA VINCENT MARK PLAINTIFF GOLDBERG JOSEPH 829 FAIRFIELD STREET MECHANICSBURG PA 17055 POLINKA TERRI L PLAINTIFF GOLDBERG JOSEPH 829 FAIRFIELD STREET MECHANICSBURG PA 17055 UNITED MEDICAL BANK DEFENDANT BANKS DAVID 2200 GEORGETOWN DRIVE SUITE 201 SEWICKLEY PA 15143 HOMECOMINGS FINANCIAL USA DEFENDANT CORPORATION RESIDENTIAL FUNDING USA DEFENDANT COPORATION * Date Entries - - - - - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 10/20/2006 COMPLAINT ---------- 11/13/2006 RPRELIMINARY ESIDENTIAL FUNDING OBJECTIONS LLC O TO D EFTS S COMPLAINT HOMECOMINGS PLFFFSSCVINCENT MARK POLINKA AND TERRI L POLINKA - BY JOSEPH F RIGA ATTY FOR DEFTS ------------------------------------------------------------------- 7 1/04/2007 PRAECIPE TO ENTER APPEARANCE - BY DAVID BANKS ATTY FOR DEFT-UNITED MEDICAL BANK FSB ------------------------------------------------------------------- 1/16/2007 AMENDED COMPLAINT - BY JOSEPH K GOLDBERG ATTY FOR PLFFS ------------------------------------------------------------------- y?_ 2/16/2007 DEFENDANT UNITED MEDICAL BANK FSB'S ANSWER AND NEW MATTER - BY DAVID BANKS ATTY FOR DEFT ------------------------------------------------------------------- 74,-%1 3/09/2007 ANSWER OF DEUTSCHE BANK NATIONAL TRUST CO AND BANK OF NEW YORK TO AMENDED COMPLAINT WITH DEFENSES - BY JOSEPH F RIGA ATTY FOR DEFTS ------------------------------------------------------------------- C- 5/21/2007 PLAINTIFF'S OPPOSITION TO MOTION FOR PROTECTIVE ORDER AND ALTERNATIVELY CROSS-MOTION FOR PAYMENT OF REASONABLE EXPENSES AND ATTY'S FEES - BY JOSEPH K GOLDBERG ATTY FOR PLFFS ------------------------------------------------------------------- rf7 /G7 5/22/2007 MOTION FOR PROTECTIVE ORDER BY DAVID BANKS ATTY FOR DEFT ------------------------------------------------------------------- ?G3-jt?s 5/30/2007 AMENDMENT TO P ALTERNATIVELYCROSS-MOTION TFOR PAYMENT O OF F REASONABLE PROTECTIVE EXPENSES AND ATTY'S FEES - BY JOSEPH K GOLDBERG ATTY FOR PLFFS -------- -- ------ ------- -- ---- ------ ------- ---- --- - /G`)-/G 6/01/2007 PRAECIPE-TO-ATTACH-EXHIBIT-TO-DEFT-UNITED-MEDICAL-BANK-FSB-& CHARLES MARINO FABICK ATTY FOR PLFFS ------------------------------------------------------------------- 6/09/2007 AMENDMENT TO FOTTION FOR PROTECTIVE ORDER - BY DAVID BANKS ATTY FOR DEFT/UM BANK --------------------------------------------------------------------- 6/15/2007 ORDER - 06-15-07 - IN RE: MOTION FOR PROTECTIVE ORDER OF DEFT UNITED MEDICAL BANK FSB AND CHARLES MARINO AND PLFFS' CROSS-MOTION FOR PAYMENT OF REASONABLE EXPENSES AND ATTY'S FEES - ARGUMENT 08-02-07 AT 2:30 PM IN CR 4 CUMB CO COURTHOUSE - BY KEVIN A HESS J Ub-.zzgIzIL 5GUV7 I.U.IIII?CrJ-allU l-UU11L.V Yi)L-11U11VLd1 V - S VL1.lUC rayc PYS510 Civil Case Print 2006-06136 POLINKA VINCENT MARK ET AL (vs) UNITED MEDICAL BANK FSB ET AL Reference No..: Filed........: 10/20/2006 Case Type.....: COMPLAINT Time.........: 10:07 Judgment...... .00 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------ Higher Crt 1.: 1924MDA2009 Higher Crt 2.: - COPIES MAILED 06-15-07 ------------------------------------------------------------------- ll3 -%/y 7/31/2007 BANKRUPTCY - BY DAVID BANKRUPTCY BANKS P ATTY FOR FILED DEFT A UNITED MEDICAL PETITION BAFOR NK -------- -- -------- --------- ------ ------- ---- --- --------- 7/31/2007 ITNESSPCHARLESTMARINOSEMOTDIONTFORIPROTECTTIVELORDER - BYNDAVIDRTY BANKS ATTY FOR DEFT UNITED MEDICAL BANK ------------------------------------------------------------------- ?! -/may 4/15/2009 MOTION TO CONCURRENCE) - BETWEEN FOR MEDICAL (WITHOUT ENFORCE PLFFS ------------------------------------------------------------------- 4/17/2009 BETWEEN PLFFS RULE TO SHOW CAUSE - 4/17/09 IN RE: MOTION TO ENFORCE SETTLEMENT RULE IS HEREBY ISSUED UPON THE DEFTS TO SHOW CAUSE IF ANY THEY HAVE WHY THE RELIEF SOUGHT BY THE PLFFS SHOULD NOT BE GRANTED - THIS RULE RETURNABLE 20 DAYS AFTER SERVICE - IF AND ANSWER IS FILED SAME SHALL INCLUDE AN ORDER FOR HEARING - BY KEVIN A HESS J - COPIES MAILED 4/17/09 -------------------------------------------------------------------- NEW YORK - DBYTJODEUTSCHE GOLDBERGNATIONAL FOR TRUST j - j 4/20/2009 COMPANYEAND BANKDISCONTINUE PLFFS ---------•---------------------------------------------------------- / -133 5/04/2009 DEFENDANT UNITED MEDICAL BANK FSBS RESPONSE TO PLFFS MOTION TO ENFORCE SETTLEMENT BETWEEN PLFFS AND UNITED MEDICAL BANK FSB - BY DAVIS BANKS ATTY FOR DEFTS ------------------------------------------------------------------- l 7 / 6/01/2009 ORDER - 5/29/09 IN RE: DEFT UNITED MEDICAL BANK FSBS RESPONSE TO PLFFS MOTION TO ENFORCE SETTLEMENT BETWEEN PLFFS AND UNITED MEDICAL BANK FSB - ARGUMENT IS SCHEDULED FOR 6/18/09 AT 9:30 AM IN CR4 CUMBERLAND COUNTY COURTOUSE - BY KEVIN A HESS J - COPIES MAILED 611109 ------------//------------------------------------------------------- /? 7/13/2009 DENIED -7BY3WINNARHESSCJI- COPIESENFMAILEDORCE - MOTION IS -------------------------------------------------------------------F'S MOTION F /,;;/r8/10/2009 CSA702BFAND AMENDMENT OR WCITHOUTA CONCURRENCE - BY JOSEPH K GOLDBERG ATTY FOR PLFFS ------------------------------------------------------------------- 8/13/2009 ORDER - 8/13/09 - IN RE: RULE ISSUED ON DEFTS TO SHOW CAUSE WHY THE RELIEF REQUESTED IN MOTION OUGHT NOT TO BE GRANTED - RULE RETURNABLE 20 DAYS AFTER SVC - BY KEVIN A HESS J - COPIES MAILED 8/13/09 ------------------------------------------------------------------- / 9/09/2009 MOTION TO MAKE RULE ABSOLUTE - BY JOSEPH K GOLDBERG ATTY FOR PLFFS ------------------------------------------------------------------- /10/29/2009 ORDER - 10/29/09 - PLFFS MOTION FOR APPELLATE CERTIFICATION PURSUANT TO 42 PA CS 702B AND AMENDMENT OF ORDER PURSUANT TO PA RAP 1131E AND THE ABSENCE OF ANY OPPOSITION THERTO THE MOTION OF THE PLFFS IS GRANTED AND THE COURT'S JULY 13, 2009 ORDER ISSUED IN THIS CASE IS HEREBY AMENDED TO READ AS FOLLOWS AND NOW THIS 29TH DAY OF OCTOBER 2009 THE MOTION OF THE PLAINTIFF'S TO ENFORCE SETTLEMENT IS DENIED THIS ORDER INVOLVES A CONTROLLING QUESTION OF LAW AS TO WHICH THERE IS SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION AND IMMEDIATE APPEAL FROM THE ORDER MAY MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF THE MATTER BY THE COURT KEVIN A HESS J COPIES MAILED 10-29-09 -------- •----------------------------------------------------- ------ /j'3,/j 711/05/2009 PLAINTIFF'S NOTICEPOOFFSPPEAL - SUPERIOR COURT - BY JOSEPH K ------------------------------------------------------------------- /5'-/_f?2ll/05/2009 PLAINTIFF'S STATEMENT REGARDING TRANSCRIPT BY JOSEPH K GOLDBERG ESQ ------------------------------------------------------------------- PYS510--------- v? wyy? uCivi - se yPrirt yr .. ------ 2006-06136 POLINKA VINCENT MARK ET AL (vs) UNITED MEDICAL BANK FSB ET AL Reference No..: Filed........: 10/20/2006 6 Case Type.....: COMPLAINT Time.........: 10:0 Judgment .0 0 Execution Date 0/00/0000 Judge Assigned: Jury Trial.... Disposed Desc.: ------------ Case Comments ------ Disposed Date. 0/00/0000 ----- -- Hi gher Crt 1.: 1924MDA2009 ?? f3 11/16/2009 SUPERIOR COURT OF PA NOTICE --------- g Hir .: OF APPEAL DOCK ETING TOt#21924 MDA 2009 - ---- 11/19/2009 TRANSCRIPT-OF-PR - -------- ----------- ------- - OCEDINGS - BY KEVIN A HESS - J - - - _ - - - - - - - - - - - - - - - - ------------- 12/18/2009 NOTICE-OF-DOCKET ------------------------------------- -ENTRIES MAILED TO TO JOSEPH - K - GOLDBERG ----------- ESQ DAVID B BANKS ESQ AND JOSEPH F RIGA ESQ /-7 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits **************************** Beg Bal *** Pmts/Ad? End Bal * ****** ** ****** ** ***************** ************ COMPLAINT 35.00 35.00 .00 TAX ON CMPLT .50 .50 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION 5.00 5.00 00 JCP FEE 10.00 10.00 . .00 SUBPOENA 3.00 3.00 00 AUTH TO REMOVE 8.00 8.00 . 00 APPEAL HIGH CT --- 48.00 ---------- 48.00 . .00 -- 114.50 --------- -- 114.50 ---------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** 3 ay ?t ai d and iha sca! of said C:Ou ? at ra This .....S...... day of........ & ....., ?. ..............' ?1-.......:.....,.?r.- Prothonotary r 6uper%or (Court of Vennoprbania CERTIFICATE OF REMITTAUREMAND OF RECORD 73- = Karen Reid Bramblett, Esq. Prothonotary Milan K. Mrkobrad, Esq. Deputy Prothonotary Pennsylvania Judicial Center Middle District P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-2435 (717) 772-1294 www.superior.comi4 ate.P"T ° n L.- 1 = r`te' -rt ? -L w TO: Prothonotary RE: Polinka, V. v. United Medical Bank 1924 MDA 2009 Trial Court: Cumberland County Court of Common Pleas Trial Court Docket No: 06-6136 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part with envelope attached December 18, 2009 Additional Item(s): Enclosed please find a certified copy of an order dated March 17, 2010. Remand/Remittal Date: 04/26/2010 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating, and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /aas Enclosure cc: David Banks, Esq. Joseph Keith Goldberg, Esq. The Honorable Kevin A. Hess, President Judge Joseph F. Riga, Esq. Polinka, V. v. United Medical Bank 1924 M DA 2009 Letter to: Buell, David D. Acknowledgement of Certificate of Remittal/Remand of Record (to be returned): Signature Date Printed Name F1i..EL-.,4.,;; _;,„a,,_ T r, Vincent Mark Polinika, et al. IN THE SUPERIOR COURT 2010r :27 PM 3: ®O PENNSYLVANIA Cul?v- Cumberland County P ??d ? 4! V. A'`No. 06-6136) . No. 1924 MDA 2009 United Medical Bank, et al. Filed: March 11 Al 2010 ORDER Appellants, plaintiffs below, filed a notice of appeal from the October 29, 2009 order granting certification of a prior order pursuant to 42 Pa.C.S. § 702(b). The prior order, entered July 13, 2009, denied appellant's motion to enforce settlement. An application for amendment of an interlocutory order pursuant to 42 Pa.C.S. § 702(b) must be filed within 30 days after entry of the underlying order and permission to appeal may be sought within 30 days after entry of the order as amended. Pa.R.A.P. 1311(6). Unless the trial court acts on the application within 30 days after it was filed, the trial court shall no longer consider the application and it shall be deemed denied. Id. Certification pursuant to 42 Pa.C.S. § 702(b) and the filing of a petition for permission to appeal are both jurisdictional prerequisites for permissive interlocutory review. Hoover v. Welch, 615 A.2d 45 (Pa. Super. 1992), appeal denied, 634 A.2d 222 (Pa. 1993). Appellants did not file a petition for permission to appeal but, instead, filed a notice of appeal. See Vendale Coal Co. v. Voto Manufacturing Sales Co., 510 A.2d 1246 (Pa. Super. 1986) (quashing appeal from interlocutory order, certified pursuant to 42 Pa.C.S. § 702(b), where notice of appeal was filed instead of petition for permission to appeal). Moreover, the trial court's § 702(b) certification was not timely made. Accordingly, the above-captioned appeal is hereby QUASHED. Per Curiam TRUE COPY FROM RECORD Attest: APR ; 2010 Deputy Prothonotary Superior Court of ?A -Middle District • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER FENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Vincent Mark Polinka and Terri L. Polinka vs. United Medical Bank, FSB, Homecomings Financial USA Corporation and Residential Funding USA Corporation • 2006-6136 Civil 1924 MDA 2009 The documents comprising the record have been numbered from No.l to 176 ,and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 12/18/2009 . Curti R. Long, Prothonotary Regina Lebo An additirvi.il copy of this certificate is enclosed. Please sign and date copy, thereby acknowlc~i~~;in~ receipt of this record. Recni~«o-~ ire ~~ ~;~arinr Court Date Signature & Title DEC 1 c, 2009 Joseph K. Goldberg, Esquire 2080 Linglestown Road, Suite 106 Harrisburg, PA 17110 (717)703-3600 j goldberg@ssbc-law. com PA ID #46782 IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA VINCENT MARK POLINKA and TERRI L. POLINKA, Plaintiffs V. UNITED MEDICAL BANK, FSB, DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, and BANK OF NEW YORK, as successor Trustee to J.P. Morgan Chase, CIVIL TERM (LAW) c, • r__ Il • Q .--, ;,r ~• N O. 06-6136 -~ ` -T-~ - . . <- ._ = w ~? JURY TRIAL DEMANDED Defendants PRAECIPE TO DISCONTINUE WITH PREJUDICE TO THE PROTHONOTARY: Please mark the above-captioned case as Settled and Discontinued with Prejudice. Respectilly submitted, oe,e ~ is io . Gold ,Esquire Attorney I D 6782 2080 Lingl n Road, Suite 106 Harrisburg, A 17110 (717)703-3600 Attorney for Plaintiffs ,~ CERTIFICATE OF SERVICE ~. /~ I, the undersigned, hereby certify that on the ~ day of V ~l 2010 I served a copy of the foregoing Praecipe to Discontinue with Prejudice, by first-class mail, postage prepaid, upon the following: Joseph F. Riga, Esquire McDOWELL RIGA 842 West Lancaster Avenue Second Floor Bryn Mawr, PA 19010 Attorney for Defendants Deutsche Bank National Trust Company and Bank of New York and David B. Banks, Esquire Banks & Banks 3038 Church Road ~ Lafayette Hill, PA 19444 Attorney for Defendant United Medical Bank, FSB %