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HomeMy WebLinkAbout06-7215STEPHEN M. HLADIK, ESQUIRE ATTORNEY I.D. NO. 66287 ATTORNEY FOR PLAINTIFF KERNS PEARLSTINE, ONORATO & FATH, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 LASALLE BANK NATIONAL ASSOC., as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200 Beaverton, OR 97005, PLAINTIFF, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO: - ?,21s L I t? i l?? V. TODD A. PERRY CARRIE PERRY CARRIE A. MAILEY BILL J. NICKEY CAREL A. NICKEY and ANY AND ALL UNKNOWN OCCUPANTS 5008 Greenwood Circle Enola, PA 17025, DEFENDANT. NOTICE YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CAANOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYERS REFERENCE SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. SI USTED QUIEREDEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGUIENTES,USTED TIENE VIENTE (20) DIAS DE PLAZO AL PARTIR DE LA FECHA DE LADEMANDA Y LA NOTIFICACION. USTED DEBE PRESENTAR UNA APARIENCIAESCRITA O EN PERSONA O POR ABOGADO Y ARCHIVAR EN LA CORTE ENFORMA ESCRITA SUS DEFENSAS O SUS OBJECIONES A LAS DEMANDAS ENCONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE DEFIENDE,LA CORTE TOMARA MEDIDAS Y PUEDE ENTRAR UNA ORDEN CONTRA USTED SINPREVIO AVISO O NOTIFICACION Y POR CUALQUIER QUEJA O ALIVIO QUE ESPEDIDO EN LA PETICION DE DEMANDA. USTED PUEDE PERDER DINERO OSUS PROPIEDADES O OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENEABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCIONSE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDECONSEGUIR ASISTENCIA LEGAL. LAWYERS REFERENCE SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 STEPHEN M. HLADIK, ESQUIRE ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & FATH, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 LASALLE BANK NATIONAL ASSOC., as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200 Beaverton, OR 97005, PLAINTIFF, V. TODD A. PERRY CARRIE PERRY CARRIE A. MAILEY BILL J. NICKEY CAREL A. NICKEY and ANY AND ALL UNKNOWN OCCUPANTS 5008 Greenwood Circle Enola, PA 17025, DEFENDANT. ATTORNEY FOR PLAINTIFF COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO: 06. 7d rJ Cali e`"f Plaintiff hereby complains against Defendants as follows: 1. Plaintiff, LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 ("Plaintiff"), a corporation, has a registered office c/o Wilshire Credit Corporation, 14523 SW Millikan Way, Suite 200, Beaverton, OR 97005, and is properly conducting business in the Commonwealth of Pennsylvania. 2. Defendants are Todd A. Perry, Carrie Perry, Carrie A. Mailey, Bill J. Nickey, Carel A. Nickey and Any and All Occupants (collectively, "Defendants") and they reside at 5008 Greenwood Circle, Enola, PA 17025 (the "Premises") 3. The Premises, which is where the ejectment is to take place, is located at 5008 Greenwood Circle, Enola, PA 17025. A true and correct copy of the legal description of the Premises, is attached hereto, incorporated herein by reference, and Y marked as Exhibit "A." 4. The Premises were sold at Sheriffs sale by the Sheriff of Cumberland County, Pennsylvania, after due advertisement and according to law, under and by virtue of a Writ of Execution issued to satisfy a Judgment in Mortgage Foreclosure entered in the Court of Common Pleas of Cumberland County, Pennsylvania, at the suit of: LaSalle Bank National Association as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c% Wilshire Credit Corporation v. Todd Perry and Came Perry. Todd A. Perry and Carrrie Perry were the previous owners of the Premises by virtue of a Deed dated September 11, 2001, and recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania, in Deed Book 248, Page 1852, Cumberland County, Pennsylvania. 5. The case number of said Judgment is: 06-1093. 6. Plaintiff purchased the Premises at the Sheriffs sale. 7. The Deed in favor of Plaintiff, has not been recorded as settlement has not yet been made with the Sheriff and/or the Sheriff has not yet returned the Deed to Plaintiff for recording. 8. The persons in possession of the Premises are believed to be the Defendants in this action who are occupying the Premises without right and without claim to title. Plaintiff is entitled to immediate possession of the Premises. WHEREFORE, Plaintiff demands judgment, in ejectment, for immediate possession of the Premises, issuance of a Writ of Possession and a judgment of its costs and disbursements in this action. Date: WidA. Respectfully ubmitted, BY: STEPHEN M. HLADIK, ESQUIRE Attorney for Plaintiff VERIFICATION Stephen M. Hladik, Esquire, hereby states that he is the attorney for Plaintiff in this action; that he is authorized to and does take this Verification on behalf of said Plaintiff; and that the statements made in the foregoing Ejectment are true and correct to the best of his knowledge, information and belief. Counsel has been unable to obtain the Plaintiffs verification at this time, which verification, when received, shall be substituted in place and in stead of this verification. The undersigned understands that the statements herein are made subject to the penalties of 18 PA. C.S. §4904, relating to unsworn falsification to authorities. Date: Stephen ladik, Esquire Attorney f Plaintiff r File No. LST179- 106 EXMBIT A ALL THOSE CERTAIN tract of land, situate in Township of Hampden, Cumberland County, Pennsylvania krjovan as Lot No. 5 m Subdivision Plan of Greenwood Estates rei: orded in the Office of the Recorder of DeeA s of Cumberland County in Plan Book 76, Page 128, more particularly bounded and described as follows: BEGI1-TNT]NG at a point being the fiouthwest comer of Lot No. 4 on the aforesaid Plan; thence South 47 degree s, 55 minutes, 45 seconds East along the said Lot No. 4 a distance of 171.76 feet to a point in the cal-de,-sac of Greenwood Circle proposed; thence along the curve of the cue-de ;::ac a length of 104.99 feet with a radius of E ) feet to a proposed concrete monument on the cul-de-sac Of Greenwl ood Circle proposed; thence South 31 degrees, 4° minutes, 00 seconds West along formerly of Howell P, Carper and Lynn P. Carper, north 85 degrees, 33 minutes, 49 seconds West a distance of 1. 12.45 to a point; thence aJoztg lands now or formerly of Parmay Development Company, :nc. North 11 degrees, 3 ninnies;. 54 seconds East a distance 370.69 feet to a point, the place of BEGIN ING. CONTAE,UNG therein 46,588.20 square feet; more or less oT 1,0655 acres more oT less. BEING PARCEL Number 10-14.0840-0100. BEING TIDE SAME premises wtach k BG A ssociatcs, LLC, a PA 1:. invited Liability Company, by deed dated 9/11/2001 and recorded 9/13/200 i ' the Recorder of Deeds Office in and for Cumberland County, Pennsylvania in Book 248 Page 1852, granted and conveyed unto Todd A. Perry and Carrie Perry, husband and wife as tenants by the entirety. 1 47 C rr w Robert E. Chernicoff, Esquire (Supreme Court #23380) Kelly M. Knight, Esquire (Supreme Court #87365) Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 E-Mail: rec a cclawpc.com kknightL&cclawpc. com Attorneys for Defendants LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 66 '7a 15 C iv l I T&-m NOTICE TO PLEAD TO: LaSalle Bank National Assoc., c/o Stephen M. Hladik, Esquire as Trustee for Structured Asset Kerns, Pearlsteine, Onorato, Fath, LLP Investment Loan Trust Series 2003-13C9 425 West Main Street, P.O. Box 29 c/o Wilshire Credit Corporation Lansdale, PA 19446-0029 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED ANSWER AND NEW MATTER WITHIN TWENTY (20) DAYS FROM THE DATE OF SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERED GAINST YOU.. P.C. By: Ily M/Knight,'Es$ire 23'20 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 Robert E. Chernicoff, Esquire (Supreme Court #23380) Kelly M. Knight, Esquire (Supreme Court #87365) Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 E-Mail: rec cr,cclaw cp com kkni1.,ht(&,cclawpc.com Attorneys for Defendants LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - EJECTMENT DEFENDANTS' ANSWER TO CIVIL ACTION - EJECTMENT AND NOW, comes the Defendants, by and through their counsel, Cunningham & Chernicoff, P.C., who hereby file their Answer to Plaintiff's Civil Action - Ejectment and in support thereof aver as follows: 1. Admitted. 2. Admitted. 3. Denied as stated. It is specifically denied that any decision has been made that an ejectment is to take place on the Premises. It is admitted that the address of the Premises is 5008 Greenwood Circle, Cnola, Pennsylvania 17025. The remaining allegations set forth in this paragraph are contained in a writing which is the best evidence concerning the subject of such a paragraph. 4. Denied. Defendants are without sufficient information or knowledge to form a belief as to the truth of the matters asserted. By way of further answer, it is specifically denied that the Premises was sold at Sheriff's Sale after due advertisement and according to law. By way of further answer, Plaintiff forwarded a Forbearance Agreement (the "Forbearance Agreement") to Defendants, whereby the Plaintiff offered to forbear from execution proceedings in exchange for the payment of the sum of $20,000.00, which Plaintiff has accepted, and such sum was paid. A true and correct copy of the Forbearance Agreement is attached as hereto as Exhibit "A" and is incorporated herein by reference. The remaining allegations set forth in this paragraph are contained in writings which are the best evidence concerning the subject of such averments. 5. Admitted. 6. Denied. Defendants are without sufficient information or knowledge to form a belief as to the truth of the matter asserted. Therefore, the same is denied and strict proof thereof is demanded at the time of trial. 7. Denied. Defendants are without sufficient information or knowledge to forma belief as to the truth of the matter asserted. Therefore, the same is denied and strict proof thereof is demanded at the time of trial. 2 8. Denied. Defendants are without sufficient information or knowledge to form a belief as to the truth of the matters asserted. By way of further answer, it is specifically denied that the Premises was sold at Sheriff's Sale after due advertisement and according to law. By way of further answer, Plaintiff forwarded a Forbearance Agreement (the "Forbearance Agreement") to Defendants, whereby the Plaintiff offered to forbear from execution proceedings in exchange for the payment of the sum of $20,000.00, which Plaintiff has accepted, and such sum has been paid. The remaining allegations set forth in this paragraph are contained in writings which are the best evidence concerning the subject of such averments. WHEREFORE, Defendants, Todd A. Perry, Carrie Perry, Carrie A. Malley, Bill J. Nickey, and Carel A. Nickey, and any and all unknown occupants of 5008 Greenwood Circle, Enola, Pennsylvania 17025, hereby respectfully request that this Honorable Court dismiss Plaintiff's Civil Action - Ejectment, with prejudice and grant Defendants such further relief as is just and proper. NEW MATTER 9. Paragraphs I through 8 are incorporated by reference as if more fully set forth herein. 10. Subsequent to the alleged default of Defendants under the Mortgage, Plaintiff created and forwarded the Forbearance Agreement to Defendants, Todd and Carrie Perry. 11. Pursuant to the terms of the Forbearance Agreement, Defendants, Todd and Carrie Perry, forwarded a check in the amount of $20,000.00 on or about August 20, 2006, to Plaintiff. However, such finds were returned to Defendants as they were not in the form of a certified check. 3 12. On or about August 28, 2006, Defendant, Todd Perry, forwarded to Plaintiff a certified check in the amount of $20,000.00 in consideration of Plaintiff's promise to halt all foreclosure proceedings. A true and correct copy of the correspondence from Todd Perry to Plaintiff accompanying the $20,000.00 certified check is attached hereto as Exhibit "B" and is incorporated herein by reference. 13. The $20,000.00 certified check, sent by Defendant, Todd Perry, was accepted and cashed by Plaintiff. 14. Plaintiff accepted the terms of Defendant, Todd Perry's, offer to halt foreclosure proceedings, by cashing the $20,000.00 certified check forwarded to it by Defendant, Todd A. Perry. 15. Unaware of the alleged Sheriff's Sale in Cumberland County, Pennsylvania, Defendant, Todd A. Perry, obtained a new homeowners' insurance policy in approximately November 2006, listing Plaintiff as Mortgagee. A true and correct copy of the Declarations page showing the effective date of the Insurance Policy is attached hereto as Exhibit "C" and is incorporated herein by reference. 16. Plaintiff was made aware of the Insurance Policy obtained by Defendant, Todd Perry, in November 2006, and set forth no objections. 17. Plaintiff's acceptance of the $20,000.00 in consideration of its promise to halt foreclosure proceedings, constitutes a valid agreement which therefore bars Plaintiff's current action in ejectment. 4 WHEREFORE, Defendants, Todd A. Perry, Carrie Perry, Carrie A. Mailey, Bill J. Nickey, and Carel A. Nickey, hereby respectfully request that this Honorable Court dismiss Plaintiffs Civil Action - Ejectment action with prejudice and further request that this Honorable Court grant Defendants such further relief as is just and proper. Respectfully submitted, Date: Januar36 , 2007 FOIotncATLRANSW ERSTERRY.wpd C COFF, By; obe 7reme Che ni f , wira. Su Court I. #23380 Kelly M. Knight, Esquire Pa. Supreme Court I.D. #87365 2320 North Second Street Harrisburg, PA 17110 (717) 238-6570 Attorneys for Defendants 5 EXHIBIT "A" FORBEARANCE AGREEMENT Mortgagor: Todd and Carrie Perry ("Borrowers") Note Holder: LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9, c/o Wilshire Credit Corp., its servicing agent ("Wilshire") Loan number: 243812 Property address: 5008 Greenwood Circle, Enola, PA 17025-1289 (the "Property") WHEREAS, Borrowers executed a note payable to Wilmington Finance, Inc. ("Wilmington"), dated April 25, 2003, in return for a loan made to Borrowers in the amount of $400,000.00 (the "Note"); and WHEREAS, Borrowers conveyed a mortgage dated April 25, 2003 to Wilmington to secure payment under the Note (the "Mortgage," and collectively with the Note, the "Loan"); and WHEREAS, the Loan was subsequently assigned to LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9; and WHEREAS, Borrowers are obligated under the Note to make a monthly payment of principal and interest in the amount of $3,795.12; and WHEREAS, Borrowers have defaulted under the terms of the Loan by reason of, without limitation, the failure to make all payments under the Note; and WHEREAS, Borrowers and Wilshire agree that the total amount due and unpaid as of August 14, 2006 is $79,370.12 (the "Arrears"); and WHEREAS, Borrowers received an Act 91 notice of their rights to file for relief with the Pennsylvania Housing Finance Agency ("PHFA"); and WHEREAS, Borrowers and Wilshire have agreed to enter into a plan of payment for the Arrears in order to avoid commencement and/or continuation of legal proceedings in the nature of foreclosure and/or other remedies available to Wilshire as a result of Borrowers' default under the Loan. NOW THEREFORE, in consideration of the foregoing recitals, the mutual covenants of the parties set forth hereunder, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. INTITIAL PAYMENT: On or before August 29, 2006, Borrowers shall pay the sum of $20,000.00 by certified check, attorneys' check or money order made payable to Wilshire Credit Corporation, with loan number 243812 noted thereon, to counsel for Wilshire at Kerns, Pearlstine, Onorato & Hladik, LLP, 425 W. Main Street, Lansdale, PA 19446, attention Stephen M. Hladik, Esquire. 2. MONTHLY PAYMENTS: Beginning with the monthly payment due September 23, 2006, and continuing through November 23, 2006, on the Twenty-third day of each month, Borrowers shall pay to Wilshire, by certified check or money order, the sum of Four Thousand Five Hundred Fifty Dollars ($4,550.00). These payments shall be forwarded directly to Wilshire at P.O. Box 7195, Pasadena, CA 91109-7195. From each payment, the sum of $754.88 shall be applied against the Arrears. Upon successful completion of the above payments (and all monthly mortgage payments), Borrowers shall: (a) Contact Wilshire Credit Corporation to receive a final statement as to any outstanding arrears; (b) Borrowers shall pay to Wilshire Credit Corporation all outstanding arrears to Wilshire ten (10) days of receipt of said statement from Wilshire. As the amount being applied to the Arrears through this Agreement is insufficient to reinstate the Mortgage, it is the responsibility of Borrowers to contact Wilshire prior to expiration of this Agreement to obtain the statement of outstanding arrears or foreclosure proceedings may commence or continue without further notice upon receipt of the last payment on this plan. 3. HAZARD INSURANCE: Borrowers agrees to keep the Property insured at all times against loss due to fire or other natural hazards in accordance with the terms of the Mortgage. Borrowers understand that they are responsible for renewing the hazard insurance policy prior to expiration. 4. FEES/COSTS: Borrowers acknowledges responsibility for payment of all costs and fees currently incurred or hereafter incurred by Wilshire, including, but not limited to, foreclosure legal fees/costs, bankruptcy fees/costs, property preservation/inspections, negative escrow balances/initial escrow balance requirements, and NSF fees, in the course of preserving and protecting its rights hereunder pursuant to the Loan. 5. PREPAYMENT: If all of the Arrears (in addition to the $22,264.64 which will have been paid if Borrowers makes all payments pursuant to section 2 of this Agreement) are paid by Borrowers prior to November 23, 2006, this Agreement shall terminate and the monthly payments required by the original Note and Mortgage shall be _ reinstated. The amount of the original escrow payment, however, may be adjusted to reflect any increases in property taxes assessed against the Property prior thereto. 6. TERMINATION CONDITIONS: Wilshire may terminate this Agreement if: (a) Borrowers permanently leave or vacate the Property. (b) Borrowers sell or convey any interest in the Property, Note or Mortgage. (c) The facts or circumstances that caused Wilshire to enter into this Agreement substantially change. (d) Borrowers fail to comply with any terms of this Agreement or the original Note and Mortgage. 7. REMEDIES: If Wilshire terminates this Agreement for any of the above conditions, Borrowers agree that Wilshire may, in its sole discretion: (a) Enter into a new agreement to satisfy the Arrears; or (b) Return to the original terms of the Note or Mortgage; or (c) Continue or commence any remedy available to it under the Note or Mortgage, including, but not limited, to mortgage foreclosure. 8. WAIVER OF DEFENSES: In consideration of Wilshire's agreement to enter into this Forbearance Agreement, Borrowers expressly waive any and all defenses, if any, they may have had with regard to the default under the Loan. If by virtue of a termination of this Agreement, Wilshire elects to commence or continue a foreclosure action, Borrowers acknowledge that they have voluntarily and knowingly relinquished any and all defenses with regard to the default under the Loan, and they will not and acknowledge that they cannot raise same in the foreclosure proceeding. Borrowers jointly and severally release, discharge, and covenant not to sue "Wilshire," any owners of the Loan, and any of their predecessors, successors, and parent corporations from any and all claims, causes of action, defenses, whether known or unknown, which Borrowers had, now have or may hereinafter acquire, which relate to, or are in any way, connected with the Loan or the acts or omissions of any related parties. Notwithstanding any other paragraph of this Agreement, this provision shall remain in full force and effect upon execution by the Borrowers, and shall survive this Agreement. Borrowers also agree, as a condition to Wilshire's acceptance of this Agreement, to execute Acceptances of Service of the previously filed action in mortgage foreclosure. 9. NOTICE: All Borrowers acknowledge receiving any and all applicable notices of intent to foreclose, including, but not limited to an Act 6, Act 91 and/or Act 160 notices. Borrowers acknowledges that, if by virtue of a termination of this Agreement, Wilshire elects to continue or commence an action in mortgage foreclosure, that no further notice (including any Act 91, 6, or 160 notice) to Borrowers shall be necessary to do so. 10. ORIGINAL NOTE AND MORTGAGE: Borrowers understand that all rights and obligations of the original note and Mortgage, except as modified herein, remain in full force and effect, and that when this Agreement expires, the monthly payments originally due under the note and Mortgage shall be paid by Borrowers in accordance with their terms, unless Wilshire agrees, in its sole discretion, to renew, amend, or extend this Agreement. 11. ESCROW: If no escrow for payments of taxes and insurance has been established with Wilshire, Borrowers agree to ensure that taxes on the Property securing the Loan are kept current and that the Property is properly insured. Wilshire at its sole discretion may request that Borrowers provide proof of tax status and property insurance coverage. I have read and understand the terms and conditions of this Agreement. I hereby agree to the terms and conditions set forth above. I acknowledge a receipt of a copy of this Agreement. Todd Perry Carrie Perry Wilshire Credit Corp By: Name: Title: Date: Date: Date: (File #16-793) EXHIBIT "B" Mr. Hladik and to whom it may concern at Wilshire, Sorry for not sending a certified check. We have had more time to review your forbearance agreement and find it filled with "legalese". In reviewing our situation more thoroughly, Carrie and I have decided not to continue with Wilshire as our mortgage company for many reasons. Please do not forward the previous agreement to Wilshire for their signature. We would like to create a second mortgage with her parents to pay down some of the arrearages and look to refinance our mortgage with Wilshire within 3 months. We will keep you apprised of our efforts. Worst case scenario, my brother has agreed to pay off Wilshire if we can't obtain a new mortgage on our own by the end of the year. Please accept this certified check from Camrie's parents in the amount of $20,000 as agreeing to these new terms. If you need more to pay down the arrearages, please let me know. Otherwise, I will assume the foreclosure proceedings to be halted upon Wilshire cashing this check. Sincerely, Todd Perry EXHIBIT "4U U ...,...........,.r,..,, ,,. UtGLAKAI IVN5 PAUL 100 State Farm Place Ballston Spa, NY 12020-8000 Named Insured PERRY, TODD 8 CARRIE 5008 GREENWOOD CIR ENOLA PA 17025-1289 Policy Number 38-OA-6176 P-13-6361-F381 F H Policy Period Effective Dat 12 Months NOV 16 2006 The policy period begins and en standard ime at the residence p Iudll?ullluu?I?I?IJ?uJ?nl?IluI?I?InIInJnIJ?ull Loan # 243812 Mortgagee WILSHIRE CREDIT CORP ITS SUCCESSORS AND/OR ASS PO BOX 80959 PORTLAND OR 97280-0959 HOMEOWNERS POLICY Automatic Renewal - If the policy period is shown as 12 months, this policy will be renewed automat premiums, rules and forms in effect for each succeeding policy period. If this policy is terminated, we wi MortgageeA-ienholderwritten notice in compliance with the policy provisions or as required by law. Location of Residence Premises Same as Insured's Address Coverages & Property Limits of Liability A Dwelling SECTION I 430, B Dwelling Extension up to Personal Property ffl C Loss of Use Actual Loss Sustained L SECTION II Personal Liability $ 500,000 Each Occurrence) rt P y Damage to rope of Others $ 500 M Medical Payments to Others (Each Person) $ 5,000 Inflation Coverage Index: 209.7 Deductibles - Section 1 All Losses $ In case of loss under this policy, the dedu- per occurrence and will be deducted from loss. Other deductibles may apply - refer 1 Loss Settlement Provision (See Policy) Al Replacement Cost - Similar Construction B1 Limited Replacement Cost - Coverage B Forms, Options, & Endorsements Homeowners Policy FP-7955 Amendatory Endorsement FE-7269 Fungus (Including Mold) Excl FE-5398 Telecommuter Coverage FE-5831 Motor Vehicle Endorsement FE-5452 Policy Endorseme t FE-5320 Jewelry and Furs 2,500 Each Option JF Article/$5,000 Agggre ate Increase Dwlg Up fo $g 86,000 Option ID Policy Premium Discounts Applied: Utility Rating Cr Claim Free Other limits and exclusions may apply - refer to your policy Your polloy consists of this page, any endorsements and the policy form. Please keep these together. PP-7001 6C Continued on Reverse KLAUDIA CHILCOAT 1286 1 51 1 717-791-1r.AQ vv114 1 nwa.v I t7vnn I nvn I vw... Please refer to the enclosed insert for additional details. State FarmOworks hard to offer you the best combination of price, service, and protection. The amount yc homeowners insurance is determined by many factors such as the coverages you have, the type of consta likelihood of future claims, and information from consumer reports. VERIFICATION I, Todd A. Perry, verify that the statements made in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. Todd A. Perry Date: 2007 LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff V. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants CERTIFICATE OF SERVICE I do hereby state that on thez_4kay of January, 2007, I served a true and correct copy of DEFENDANTS' ANSWER TO CIVIL ACTION - EJECTMENT in the above-captioned matter, by placing the same in the United States mail, first-class, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Stephen M. Hladik, Esquire Kerns, Pearlsteine, Onorato, Fath, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 CUNNINGHAM & CHERNICOFF, P.C. f? BY: Stacy A. Soll erger c-? '? v c _ ? ? -f, ?-- ? - .v.? , ?;, =,_ r ?•? _?z f - ::?J e ? - `i ?i ,t ?' ? ?_r ?? -.?( STEPHEN M. HLADIK, ESQUIRE ATTORNEY FOR PLAINTIFF ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & FATH, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 (215) 855-9521 LASALLE BANK NATIONAL ASSOC., as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200 Beaverton, OR 97005, PLAINTIFF, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO: 06-7215 V. TODD A. PERRY CARRIE PERRY CARRIE A. MAILEY BILL J. NICKEY CAREL A. NICKEY and ANY AND ALL UNKNOWN OCCUPANTS 5008 Greenwood Circle Enola, PA 17025, DEFENDANT. PRAECIPE TO SUBSTITUTE VERIFICATION TO THE PROTHONOTARY: Kindly substitute the annexed Verification to the Ejectment filed in the above-captioned docket. Respectfully Submitted, KERNS, PEARLSTINE, ONORATO & FATH, LLP Date: 1?'b ( BY: IV Stephen M. ladik, Esquire Attorney for Plaintiff VERIFICATION The undersigned, an officer of the Corporation which is the Plaintiff in the foregoing Complaint or an officer of the Corporation which is the servicing agent of Plaintiff, and being authorized to make this verification on behalf of Plaintiff, hereby verifies that the facts set forth in the foregoing Complaint are taken from records maintained by persons supervised by the undersigned in the ordinary course of business and that those facts are true and correct to the best of the knowledge, information and belief of the undersigned. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 PA. C.S § 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. DATE: /o? - f q - 0 6 AME: TITLE: f'am gue COMPANY: C:) c ? - r7 N) C) i ?fn ; C) Attorney For Plaintiff ., as COURT OF COMMON PLEAS OF Trustee for Structured Asset Investment CUMBERLAND COUNTY, PA Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff KERNS, PEARLSTINE, ONORATO & FATH, LLP STEPHEN M. HLADIK, ESQUIRE ATTORNEY I.D. NO. 66287 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 215 855-9521 1 ASALLE BANK NATIONAL ASSOC V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025, Defendants NO: 06-7215 PLAINTIFF'S REPLY TO NEW MATTER Plaintiff, LaSalle Bank National Assoc., as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c/o Wilshire Credit Corporation, by and through its undersigned counsel, hereby files the within Reply to New Matter, and in support thereof avers the following: 9. Plaintiff incorporated its allegations 1 through 8 as though set forth at length herein. 10. It is admitted that Defendants defaulted under their Mortgage. It is also admitted that in order to give the Perrys an additional chance to try and come current on their Mortgage, Plaintiff offered a Forbearance Agreement to the Defendants. } 11. It is admitted that, per the terms of the Forbearance Agreement that the Defendants were to provide certified funds in the amount of $20,000.00 before August 20, 2006. It is also admitted that Defendants sent a personal check and, therefore, the funds were returned to the Defendants. By way of further reply, the Forbearance Agreement is a writing that speaks for itself and any characterization by the Defendants is denied. 12. It is admitted that Defendants sent a certified check in the amount of $20,000.00. It is admitted that those funds were applied and Plaintiff cancelled the foreclosure proceeding, which was scheduled on August 28, 2006. By way of further reply, per the Forbearance Agreement at paragraph 2, the Defendants were to continue paying the sum of $4,550.00 per month, beginning September 23, 2006. From that sum $754.88 were to be applied against their arrears. At the time of the origination of the Forbearance Agreement, Defendants admitted that their Mortgage was in arrears in the amount of $79,370.12. Thus, the $20,000.00 down payment did not even remotely come close to bringing their Mortgage current. 13. It is admitted that the down payment was accepted. By way of further reply, per the obligation to make payments on a monthly basis thereafter, Defendants defaulted and failed to make their payments. 14. It is admitted that Plaintiff accepted the $20,000.00. By way of further reply, Plaintiff did cancel the Sale scheduled for August, 2006. 15. Plaintiff is without information sufficient to admit or deny why Defendant was unaware of a Sheriffs Sale scheduled or whether he obtained a new insurance policy. Nevertheless, Defendant had breached his obligations of the Forbearance A Agreement to make monthly payments. Therefore, Plaintiff was entitled to proceed to Sheriff's Sale. Per paragraph 9 of the Forbearance Agreement, Defendants agreed, "Borrowers acknowledge that, if by virtue of a termination of this Agreement, Wilshire elects to continue or commence an action in mortgage foreclosure, that no further notice (including any Act 91, 6 or 160 notice) to Borrowers shall be necessary to do so." 16. It is admitted that Defendant forwarded the insurance, though whether Plaintiff was aware of insurance or not is irrelevant to the fact that the property was scheduled for Sheriff s Sale. 17. Denied. In compliance with the Forbearance Agreement, Plaintiff did cancel the Sheriffs Sale scheduled for August 28, 2006. By virtue of the Defendants' default under the Forbearance Agreement thereafter, Plaintiff was entitled to proceed to Sheriff's Sale, which Sale occurred on December 6, 2006. By way of further reply, the Deed vesting ownership of the property in Plaintiff was recorded on January 4, 2007 in the Cumberland County Recorder of Deeds at Book 278, Page 1273, thus evidencing conclusively Plaintiff's right to possession of the premises. WHEREFORE, Plaintiff hereby respectfully requests that this Honorable Court dismiss Defendants' New Matter. RESPECTFULLY SUBMITTED, KERNS, PEAALSTINE, ONORATO & HLADIK, ,,11pp Date: BY: Stephen M. Fik; Esquire Attorney for Plaintiff VERIFICATION Stephen M. Hladik, Esquire, hereby states that he is the attorney for Plaintiff in this action; that he is authorized to and does take this Verification on behalf of said Plaintiff; and that the statements made in the foregoing Reply to New Matter are true and correct to the best of his knowledge, information and belief, and are based on information supplied to him by said Plaintiff. The undersigned understands that the statements herein are made subject to the penalties of 18 PA. C.S. §4904, relating to unsworn falsification to authorities. Date: ZA'? r Stephen M. Hladik, squire Attorney for Plaintiff KERNS, PEARLSTINE, ONORATO & FATH, LLP STEPHEN M. HLADIK, ESQUIRE ATTORNEY I.D. NO. 66287 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 215 855-9521 1 ASALLE BANK NATIONAL ASSOC Attorney For Plaintiff ., as COURT OF COMMON PLEAS OF Trustee for Structured Asset Investment CUMBERLAND COUNTY, PA Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff V. NO: 06-7215 TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025, Defendants CERTIFICATE OF SERVICE I, Stephen M. Hladik, Esquire, hereby certify that I served a true and correct copy of the foregoing pleading, on the person below, via first class mail, on February 2, 2007: Robert E. Chernicoff, Esquire Kelly M. Knight, Esquire CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 17110 Date: N Stephen M. Hladi , quire Attorney for Plaintiff 1 ?.._. z % LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff v. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-7215 Civil Term ENTRY OF APPEARANCE TO THE CLERK: Kindly enter the appearance of Bruce J. Warshawsky, Esquire on behalf of Cunningham & Chernicoff, P.C., as attorney of record for the Defendants, Todd A. Perry, e Perry, Carrie A. Mailey, Bill J. Nickey and Carel A. Nickey, in the a ma r. Date: Februarye'J , 2007 By: Bruce J. Warshawsky, Esquire PA ID No: 58799 2320 North Front Street Harrisburg, PA 17110 Telephone: (717) 238-6570 M LASALLE BANK NATIONAL ASSOC., IN THE COURT OF COMMON PLEAS as Trustee for STRUCTURED ASSET OF CUMBERLAND COUNTY, INVESTMENT LOAN TRUST SERIES PENNSYLVANIA 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, NO. 06-7215 Civil Term Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant, hereby certify a true and correct copy of the foregoing ENTRY OF APPEARANCE will be served by electronic means and/or first-class U.S. mail on the following parties indicated: LaSalle Bank National Assoc., as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c/o Wilshire Credit Corporation 14523 SW Millikan Way Suite 200 Beaverton, OR 97005 Stephen M. Hladik, Esquire Kerns, Pearlsteine, Onorato, Fath, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 CUNNINGHAM & CHERNICOFF, P.C. Date: Februarys 1, 2007 F:\Iiome\BJ W \DOCS\Todd. Peny\entry.wpd ume Ametrano North Second Street sburg, PA 17110 hone: (717) 238-6570 -IVA ? ? S"11tjs '?? CD R STEPHEN M. HLADIK, ESQUIRE ATTORNEY FOR PLAINTIFF ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & HLADIK, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 215 855-9521 LASALLE BANK NATIONAL ASSOC., as COURT OF COMMON PLEAS OF Trustee for Structured Asset Investment CUMBERLAND COUNTY, PA Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200 Beaverton, OR 97005, PLAINTIFF, NO: V. TODD A. PERRY CARRIE PERRY CARRIE A. MAILEY BILL J. NICKEY CAREL A. NICKEY and ANY AND ALL UNKNOWN OCCUPANTS 5008 Greenwood Circle Enola, PA 17025, DEFENDANT. 06-7215 l MOTION FOR SUMMARY JUDGMENT Plaintiff, LaSalle Bank National Association, c/o Wilshire Credit Corporation ("LaSalle"), by and through its undersigned counsel, respectfully moves this Court for entry of Summary Judgment in its favor and in support thereof, avers as follows: 1. LaSalle commenced this action through the filing of a Complaint in Ejectment on December 20, 2006. A true and correct copy of the Complaint is attached hereto and marked as Exhibit "A." 2. Defendant filed an Answer with New Matter to the Complaint on or about January 29, 2007. A true and correct copy of the Answer with New Matter is attached hereto and marked as Exhibit "B." 3. Plaintiff responded to Defendants' New Matter on February 6, 2007 2007. A true and correct copy of said response is attached hereto and marked as Exhibit "C." 4. The pleadings in this matter are now closed. BACKGROUND 5. Plaintiff purchased the real property located at 5008 Greenwood Circle, Enola, PA 17025-1289, at the Cumberland County Sheriff's Sale. A true and correct copy of its sheriff's deed is attached hereto and marked as Exhibit "D"." 6. The Sheriff's Sale was conducted by virtue of a Writ of Execution issued to satisfy the judgment entered at Docket No. 06-7215 in a mortgage foreclosure action. The Sheriff's sale was originally scheduled for sale in September, 2006. Plaintiff agreed to a forbearance with Defendant's and postponed the sale to December 6, 2006. If Defendant's remained current on the forbearance, the sale would have been stayed. However, Defendant's defaulted on the agreement and the sale proceeded as scheduled. 7. Upon conclusion of the Sheriff's Sale and recording of the Deed, any and all arguments as to defects in the Sheriff's Sale are waived. 8. Defendants do not have a lease with LaSalle and LaSalle has given no permissions for them to remain at the premises. 9. By virtue of LaSalle's purchase at the sale and issuance of the Deed to LaSalle, LaSalle is entitled to judgment as a matter of law on its Complaint in Ejectment. WHEREFORE, LaSalle Bank National Association requests that judgment be entered in its favor, and that it be permitted to proceed with a Writ of Possession. Respectfully submitted, KERNS, PEARLSTINE, ONORATO & HLADIK, LLP By: Stephen M. a c,,Esquire Attorney for P ' tiff' Dated: '"3'" STEPHEN M. HLADIK, ESQUIRE ATTORNEY FOR PLAINTIFF ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & HLADIK, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 215 855-9521 LASALLE BANK NATIONAL ASSOC., as COURT OF COMMON PLEAS OF Trustee for Structured Asset Investment CUMBERLAND COUNTY, PA Loan Trust Series 2003-Buts c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200 Beaverton, OR 97005, PLAINTIFF, NO: v. TODD A. PERRY CARRIE PERRY CARRIE A. MAILEY BILL J. NICKEY CAREL A. NICKEY and ANY AND ALL UNKNOWN OCCUPANTS 5008 Greenwood Circle Enola, PA 17025, DEFENDANT. ORDER 06-7215 AND NOW, this day of , 2007, upon consideration of the Motion for Summary Judgment of Plaintiff, LaSalle Bank National Association and any response thereto, it is hereby ORDERED and DECREED that the motion is granted and judgment is entered in its favor; and it is FURTHER ORDERED that LaSalle Bank National Association is hereby granted permission to obtain a Writ of Possession and continue with its ejectment proceeding, to retake possession of 5008 Greenwood Circle, Enola, PA 17025. BY THE COURT: J. STEPHEN M. HLADIK, ESQUIRE ATTORNEY FOR PLAINTIFF ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & HLADIK, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 215 855-9521 LASALLE BANK NATIONAL ASSOC., as COURT OF COMMON PLEAS OF Trustee for Structured Asset Investment CUMBERLAND COUNTY, PA Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200 Beaverton, OR 97005, PLAINTIFF, NO: V. TODD A. PERRY CARRIE PERRY CARRIE A. MAILEY BILL J. NICKEY CAREL A. NICKEY and ANY AND ALL UNKNOWN OCCUPANTS 5008 Greenwood Circle Enola, PA 17025, DEFENDANT. 06-7215 BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Plaintiff, LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9, c/o Wilshire Credit Corporation ("Plaintiff' or "LaSalle Bank"), by and through its undersigned counsel, hereby submits this brief in support of its motion for summary judgment. INTRODUCTION Plaintiff commenced this action in ejectment by the filing of a complaint in ejectment on December 20, 2006 (the "Complaint"), January 29, 2007, -7- Defendant filed an answer to the Complaint with New Matter (the "Answer"). Plaintiff has replied to the New Matter and the pleadings are closed. Plaintiff's legal ownership of the subject premises is evident by virtue of the conveyance by the Sheriff of Cumberland County via a deed. Plaintiff's entitlement to possession of the subject property is unquestioned as a matter of law. Because there is no dispute as to any genuine issue of material fact and Plaintiff is entitled to judgment as a matter of law, entry of summary judgment is appropriate. STATEMENT OF THE CASE The real property that is the subject of this action is situate at 5008 Greenwood Circle, Enola, Cumberland County, Pennsylvania (the "Premises"). The Sheriff of Cumberland County, Pennsylvania sold the Premises on December 6, 2006, after due advertisement according to law under and by virtue of a writ of execution issued to satisfy a judgment in mortgage foreclosure entered against Defendant(s), Todd A. Perry and Carrie Perry and in favor of LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 in this Honorable Court at Docket No. 06-7215 (the "Sheriff's sale"). LaSalle Bank acquired title to the Premises on the date of and by virtue of the Sheriff's sale and became the real owner of the Premises. The persons in possession of the Premises are Todd A. Perry, Carrie Pent', Carrie A. Mailey, Bill J. Nickey, Carel A. Nickey and Any and All Unknown Occupants. Defendants are occupying the Premises without right and without claim to title thereof. Therefore, since the relevant pleadings are now closed, and Plaintiff has provided proof of its purchase and there being no genuine issue as to any material fact, Plaintiff has moved this Honorable Court to enter -8- summary judgment in its favor and against answering Defendant. Plaintiff is legally entitled to entry of summary judgment in its favor and against Defendant in accordance with Pa. R.C.P. No. 1035.1 et seg. ARGUMENT 1. THE EVIDENTIARY RECORD ESTABLISHES PLAINTIFF IS ENTITLED TO JUDGMENT AS A MATTER OF LAW. A. Standard For Granting Summary Judgment. Summary judgment is governed by Pa. R.C.P. No. 1035.2, which provides, in pertinent part: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could he established by additional discovery or expert report .... Pa. R.C.P. No. 1035.2. The purpose of the summary judgment procedure is to prevent vexation and delay, improve the machinery of justice, promote the expeditious disposition of cases and avoid unnecessary trials when no genuine issue of material fact is raised. Williams v. Pilgrim Life Insurance Co, 306 Pa. Super. 135, 461 A.2d 833 (1983). The material facts of Plaintiff's cause of action in this matter are undisputed and, therefore, there is no issue for disposition by the finder of fact. The material facts are undisputed either because Defendants have admitted to all material facts or have failed to raise any material issue of fact in dispute so as to preclude the entry of summary judgment. -9- Plaintiff has the burden of demonstrating that there is no genuine issue of material fact. Hower v. Whitmark Assoc., 371 Pa. Super. 443, 381 A.2d 524 (1988); Carollo v. 48 Insulation. Inc., 252 Pa. Super. 422, 381 A.2d 990 (1977). However, once such a showing is made, summary judgment is appropriate if an adverse party is unable to come forward with probative evidence which demonstrates that it is not liable to Plaintiff. Phaff v. Gerner, 541 Pa.146, 303 A.2d 826 (1973). When the moving party make out a case for summary judgment, the adverse party may not claim that the averments of his pleading alone are sufficient to raise a genuine issue of fact so as to defeat the motion. The adverse party must set forth specific facts showing there is a genuine issue of fact for trial. Id. See, also, Pape v. Smith, 227 Pa. 80, 323 A.2d 856 (1974); Amabile.v. Auto Kleen Car Wash, 249 Pa. 240, 376 A.2d 247 (1977). The evidentiary record, as defined by Pa. R.C.P. No. 1035.1, (pleadings and exhibits, admissions and affidavits), in this matter establishes conclusively that the material facts are undisputed and, therefore, there is no issue for disposition by the finder of fact. The notes to Pa. R.C.P. No. 1035.2 provide, in relevant part: Rule 1035.2 sets forth the general principle that a motion for summary judgment is based on an evidentiary record which entities the moving party to a judgment as a matter of law. The evidentiary record may be one of two types. Under subparagraph (1), the record shows that the material facts are undisputed and, therefore, there is not issue to be submitted to a jury. An example of a motion under subparagraph (1) is a motion supported by a record containing an admission. By virtue of the -10- admission, no issue of fact could be established by further discoverv or expert report. Note to Pa. R.C.P. No. 1035.2 (emphasis added). B. Elements Of An Action In Eiectment Ejectment actions are possessory actions. Soffer v. Beech, 487 Pa. 255, 409 A.2d 337 (1979). The purpose of an action in ejectment is to regain possession, Id., and a party must prove only two (2) elements, (i) that the party is not in possession, and (ii) that the party has the present right to possession of the premises. Shannon v. Reed, 355 Pa. 628, 50 A.2d 278 (1947). To properly plead a cause of action for ejectment, a plaintiff must aver in a complaint in ejectment (i) the description of the land, and (ii) an abstract of title. See Pa. R.C.P. No. 1054. In order for a defendant to defend an action in ejectment, the defendant would have to demonstrate that he or she has the right to possession of the property. Defendants may not merely rely on the unsupported and undocumented averments contained in an answer. Pa. R.C.P. No. 1035.3. It is also well-established that a purchaser at a judicial sale may bring an action in ejectment. Buckwalter Stove Co. v. Edmonds, 283 Pa. 236, 128 A. 835 (1925). Further, the action may be filed before the deed has been recorded. Pavlow v. DiFabio, 57 D. & C.2d 156, aff'd 221 Pa. Super. 805, 291 A.2d 785 (1972) ("title refers back to the date of the sale and not when the deed is made"). In describing the plaintiff's burden in ejectment actions, the Superior Court stated: [Plaintiff] must establish a right to immediate exclusive possession . .. In order to recover in an ejectment action, the plaintiff must show title at the commencement of the action and can recover, if at all, _11" only on the strength of his own title, not because of weakness or deficiency of title in the defendant ... This rule places upon the plaintiff the burden of proving a prima facie title which proof is sufficient until a better title is shown in the adverse party. Hallman v. Turns, 334 Pa. Super. 184, 482 A.2d 1284, 1287 (1984) (citations omitted). Plaintiff is the undisputed owner of the Premises by virtue of its completion of the Sheriff's terms of sale, said sale vesting fee simple title in Plaintiff. Plaintiff's possessory right flows directly from its ownership interest in the Premises. Defendants have set forth no basis whatsoever to contradict Plaintiff's ownership. As it is also undisputed that Plaintiff is out of possession, each element required for an action of ejectment is conclusively established. II. ALL DEFENSES OR OBJECTIONS TO A SHERIFF'S SALE ARE WAIVED UPON ISSUANCE OF THE SHERIFF'S DEED. In Pennsylvania, "[a]fter the Sheriff's deed has been delivered, the only attacks permitted on the Sheriffs Sale are those based upon fraud or on lack of authority to make the sale." Vend-A-Matic. Inc. v. Frankford Trust Co., 296 Pa. Super. 492, 500, 442 A.2d 1158, 1162 (1982) (citing Garrison v. Erb, 424 Pa. 306, 227 A.2d 848 (1967)) "The proper procedure to contest a sheriff's sale is by petition, before delivery of the sheriff's deed, under Pa. R.C.P. 3132 ... After delivery of a sheriffs deed to purchaser, the only attacks possible on the sheriffs sale are those based upon fraud which vitiates the transaction or a lack of authority to make the sale." Workingmens' S&L Assn. of Dellwood Corp. v. Kestine, 438 Pa. Super. 186, 189, 652 A.2d 327, 328 (1994) (emphasis added, citations omitted). "12" Since Plaintiff was the successful purchaser at the Sheriff's sale, its rights became fixed when the Sheriff knocked the property down at the Sheriff's sale. Bradley v. Price, 17 D. & C.2d 368, aff'd 396 Pa. 243, 152 A.2d 904 (1958). The effect of the Sheriff's sale was to extinguish all of Defendants' interest in the realty, including all rights to possession. Peoples-Pittsburgh Trust Co. v. Henshaw, 141 Pa. Super. 585, 15 A.2d 711 (1940); Sallada v. Mock, 271 Pa. 212, 114 A. 652 (1921). Defendants lost the right to contest any aspect of the Sheriffs sale upon settlement with the Sheriff. Because Plaintiff has conclusively established (i) its right to possession of the Premises and (ii) that it is out of possession, Plaintiff has met its burden for a cause of action in ejectment. Any of the arguments by Defendants are untimely and of no merit. Accordingly, Plaintiff is entitled to an award of summary judgment. CONCLUSION For all the foregoing reasons, Plaintiff respectfully requests that this Honorable Court grant its Motion for Summary Judgment and enter judgment in ejectment for possession of the Premises in its favor and against Defendants, ?13" Todd A. Perry, Carrie Perry, Carrie A. Perry, Bill J. Nickey, Carel A. Nickey and Any and All Unknown Occupants, plus costs of suit. Date: Respectfully submitted, KERNS, PEARLSTINE, ONORATO, & HLADIK, LLP By: Stephen ladik, Esquire 425 W. Main Street P.O. Box 29 Lansdale, PA 19446-0029 "14" STEPHEN M. HLADIK ESQUIRE ATTORNEY FOR PLAINTIFF ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & FATH, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 215 855-9521 LASALLE BANK NATIONAL ASSOC., as COURT OF COMMON PLEAS OF Trustee for Structured Asset Investment CUMBERLAND COUNTY, PA Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200 Beaverton, OR 97005, NO: PLAINTIFF, V. TODD A. PERRY CARRIE PERRY CARRIE A. MAILEY BILL J. NICKEY CAREL A. NICKEY and ANY AND ALL UNKNOWN OCCUPANTS 5008 Greenwood Circle Enola, PA 17025, DEFENDANT.- - - NOTICE -X2 lS Ds YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. I'?-1 YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CAANOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. LAWYERS REFERENCE SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 NOTICIA LE HAN DEMANDADO A USTED EN LA CORTE. SI USTED QUIEREDEFENDERSE DE ESTAS DEMANDAS EXPUESTAS EN LAS PAGINAS SIGUIENTES,USTED TIENE VIENTE (20) DIAS DE PLAZO AL PARTIR DE LA FECHA DE LADEMANDA Y LA NOTIFICACION. USTED DEBE PRESENTAR UNA APARIENCIAESCRITA O EN PERSONA O POR ABOGADO Y ARCHIVAR EN LA CORTE ENFORMA ESCRITA SUS DEFENSAS O SUS OBJECIONES A LAS DEMANDAS ENCONTRA DE SU PERSONA. SEA AVISADO QUE SI USTED NO SE D€FIENDE, A-CORTE- TOMARkME-DIOAS--Y-PU-ED-E_EN_TRAR-UNADRDEN CONTRA USTED SINPREVIO AVISO O NOTIFICACION Y POR CUALQUIER QUEJA O ALIVIO QUE ESPEDIDO EN LA PETICION DE DEMANDA. USTED PUEDE PERDER DINERO OSUS PROPIEDADES O OTROS DERECHOS IMPORTANTES PARA LISTED. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENEABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO,VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCIONSE ENCUNTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDECONSEGUIR ASISTENCIA LEGAL. LAWYERS REFERENCE SERVICE CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 (717) 249-3166 STEPHEN M. HLADIK, ESQUIRE ATTORNEY FOR PLAINTIFF ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & FATH, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 215 855-9521 LASALLE BANK NATIONAL ASSOC., as COURT OF COMMON PLEAS OF Trustee for Structured Asset Investment CUMBERLAND COUNTY, PA Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200 Beaverton, OR 97005, NO: PLAINTIFF, V. TODD A. PERRY CARRIE PERRY CARRIE A. MAILEY BILL J. NICKEY CAREL A. NICKEY and ANY AND ALL UNKNOWN OCCUPANTS 5008 Greenwood Circle Enola, PA 17025, DEFENDANT. Plaintiff hereby complains against Defendants as follows: 1. Plaintiff, LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 ("Plaintiff'), a corporation, has a registered office c/o Wilshire Credit Corporation, 14523 SW Millikan Way, Suite 200, Beaverton, OR 97005, and is properly conducting business in the Commonwealth of Pennsylvania. 2. Defendants are Todd A. Perry, Carrie Perry, Carrie A. Mailey, Bill J. Nickey, Carel A. Nickey and Any and All Occupants (collectively, "Defendants") and they reside at 5008 Greenwood Circle, Enola, PA 17025 (the "Premises") 3. The Premises, which is where the ejectment is to take place, is located at 5008 Greenwood Circle, Enola, PA 17025. A true and correct copy of the legal description of the Premises, is attached hereto, incorporated herein by reference, and marked as Exhibit "A." 4. The Premises were sold at Sheriffs sale by the Sheriff of Cumberland County, Pennsylvania, after due advertisement and according to law, under and by virtue of a Writ of Execution issued to satisfy a Judgment in Mortgage Foreclosure entered in the Court of Common Pleas of Cumberland County, Pennsylvania, at the suit of: LaSalle Bank National Association as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c% Wilshire Credit Corporation v. Todd Perry and Carrie Perry. Todd A. Perry and Carrrie Perry were the previous owners of the Premises by virtue of a Deed dated September 11, 2001, and recorded in the Office of the Recorder of Deeds for Cumberland County, Pennsylvania, in Deed Book 248, Page 1852, Cumberland County, Pennsylvania. 5. The case number of said Judgment is: 06-1093. 6. Plaintiff purchased the Premises at the Sheriffs sale. 7. The Deed in favor of Plaintiff, has not been recorded as settlement has not yet been made with the Sheriff and/or the Sheriff has not yet returned the Deed to Plaintiff 8. The persons in possession of the Premises are believed to be the Defendants in this action who are occupying the Premises without right and without claim to title. Plaintiff is entitled to immediate possession of the Premises. WHEREFORE, Plaintiff demands judgment, in ejectment, for immediate possession of the Premises, issuance of a Writ of Possession and a judgment of its costs and disbursements in this action. Date: Iz- BY: Respectfully ub(mitted, I STEPHEN M. HLADIK, ESQUIRE Attorney for Plaintiff VERIFICATION Stephen M. Hladik, Esquire, hereby states that he is the attorney for Plaintiff in this action; that he is authorized to and does take this Verification on behalf of said Plaintiff; and that the statements made in the foregoing Ejectment are true and correct to the best of his knowledge, information and belief. Counsel has been unable to obtain the Plaintiffs verification at this time, which verification, when received, shall be substituted in place and in stead of this verification. The undersigned understands that the statements herein are made subject to the penalties of 18 PA. C.S. §4904, relating to unsworn falsification to authorities. Date: ? ? l Ste nen Attorney Hladik, Esquire Plaintiff _ J 0 EVUBIT A 0 File No. LST379- 106 )sown as Lot No. 5 on Subdivision Plan of Greenwood Estates re,?oTded in the Office of the Recorder of DeeA s of Cumberland County in Plan Book 76, Page 128, more palbeularly bounded and descnbed as follows; BEGTNNTr G at a point being the. Southwest comer of Lot No. 4 on the aforesaid Plan; thence South 47 degm, s, 55 minutes, 45 seconds East along the said Lot No. 4 a distance of'171.76 feet to a point in the cul-de-sac of Greenwood Circle proposed, thence along the curve of the eul-de: ;;ac a length of 104.99 feet with a Tadius of E ) feet to a proposed concrete monument on the cal-•de-sac of GreenMIood Circle proposed; thence South 31 degrees, 49 mvoUtes, 00 seconds West along fomerly of Howell P. Carper and Lynn P. Carper, north 85 degrees, 33 minutes, 49 seconds West a distance of 112.45 to a point; thence along ]ands novr o7 formerly of Paraay Development Company, `Inc.. North I I degrees, 3-,, Minutes: 54 seconds East a distance 370.69 feet to a point, the place of BEGINNING. CONTAINING tberein 46,589.21.) square feet: more or less or 1.060.5 acres more o7 less, BEING PARCEL Numbe; 10-14-0940-0300. BEING THE SAME premises which KBG Associates, LLC, a PA l..amited Liability Company, by deed dated 9/11 /2001 aad recorded 9/13/2001 iP the Recorder of Deeds Office in and for Cumberland County, Pennsylvania in Book 248 Page l (52, granted and coxtveyed unto Todd A_ Perry and Carrie Perry. husband and wife as tenants b)' the entirety. Robert E. Chernicoff, Esquire (Supreme Court #23380) Kelly M. Knight, Esquire (Supreme Court #87365) Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 E-Mail: rec acclawpc.com kknig,ht(.&cclawpc.com Attorneys for Defendants LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants NOTICE TO PLEAD TO: LaSalle Bank National Assoc., c/o Stephen M. Hladik, Esquire as Trustee for Structured Asset Kerns, Pearlsteine, Onorato, Fath, LLP Investment Loan Trust Series 2003-BC9 425 West Main Street, P.O. Box 29 c/o Wilshire Credit Corporation Lansdale, PA 19446-0029 YOU ARE HEREBY NOTIFIED TO PLEAD TO THE ENCLOSED ANSWER AND NEW MATTER WITHIN TWENTY (20) DAYS FRO THE DATE OF SERVICE HEREOF OR A DEFAULT JUDGMENT MAY BE ENTERD 2YOA/ ?5??'r >?' >,vI , P.C. By: ert EICIYer?i f ff„Yqd lly M /Knight, Esire 23 0 North Second Street Harrisburg, PA 171 10 Telephone: (717) 238-6570 IOU Robert E. Chernicoff, Esquire (Supreme Court #23380) Kelly M. Knight, Esquire (Supreme Court #87365) Cunningham & Chernicoff, P.C. 2320 North Second Street Harrisburg, PA 17110 Telephone: (717) 238-6570 E-Mail: rec-,,kclawpc.com ,cclawpc.com kknig,ht60i Attorneys for Defendants LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants CIVIL ACTION - EJECTMENT DEFENDANTS' ANSWER TO CIVIL ACTION - EJECTMENT AND NOW, comes the Defendants, by and through their counsel, Cunningham & Chernicoff, P.C., who hereby file their Answer to Plaintiff's Civil Action - Ejectment and in support thereof aver as follows: 1. Admitted. 2. Admitted. 3. Denied as stated. It is specifically denied that any decision has been made that an ejectment is to take place on the Premises. It is admitted that the address of the Premises is 5008 Greenwood Circle, Enola, Pennsylvania 17025. The remaining allegations set forth in this paragraph are contained in a writing which is the best evidence concerning the subject of such a paragraph. 4. Denied. Defendants are without sufficient information or knowledge to form a belief as to the truth of the matters asserted. By way of further answer, it is specifically denied that the Premises was sold at Sheriff's Sale after due advertisement and according to law. By way of' further answer, Plaintiff forwarded a Forbearance Agreement (the "Forbearance Agreement") to Defendants, whereby the Plaintiff offered to forbear from execution proceedings in exchange for the payment of the sum of $20,000.00, which Plaintiff has accepted, and such sum was paid. A true and correct copy of the Forbearance Agreement is attached as hereto as Exhibit "A" and is incorporated herein by reference. The remaining allegations set forth in this paragraph are contained in writings which are the best evidence concerning the subject of such averments. 5. Admitted. b. Denied. Defendants are without sufficient information or knowledge to form a belief as to the truth of the matter asserted. Therefore, the same is denied and strict proof thereof is demanded at the time of trial. 7. Denied. Defendants are without sufficient information or knowledge to form a belief as to the truth of the nnatter asscrteil. Therefore, the same is denied and strict proof thereof is demanded at the time of trial. 8. Denied. Defendants are without sufficient information or knowledge to form a belief as to the truth of the matters asserted. By way of further answer, it is specifically denied that the Premises was sold at Sheri ft's Sale after due advertisement and according to law. By way of' further answer, Plaintiff forwarded a Forbearance Agreement (the "Forbearance Agreement") to Defendants, whereby the Plaintiff offered to forbear from execution proceedings in exchange for the payment of the sum of $20,000.00, which Plaintiff has accepted, and such sum has been paid. The remaining allegations set forth in this paragraph are contained in writings which are the best evidence concerning the subject of such averments. WHEREFORE, Defendants, Todd A. Perry, Carrie Perry, Carrie A. Malley, Bill J. Nickey, and Carel A. Nickey, and any and all unknown occupants of 5008 Greenwood Circle, Enola, Pennsylvania 17025, hereby respectfully request that this Honorable Court dismiss Plaintiff's Civil Action - Ejectment, with prejudice and grant Defendants such further relief as is just and proper. NEW MATTER 9. Paragraphs I through 8 are incorporated by reference as if more fully set forth herein. 10. Subsequent to the alleged default of Defendants under the Mortgage, Plaintiff created and forwarded the Forbearance Aoreement to Defendants, Todd and Carrie Perry. 11. Pursuant to the terms of the Forbearance Agreement, Defendants, Todd and Carrie Perry, forwarded a check in the amount of 520,000.00 on or about August 20, 2006, to Plaintiff. However, such funds were returned to Defendants as they were not in the form of a certified check. 3 12. On or about August 28, 2006, Defendant, Todd Perry, forwarded to Plaintiff a certified check in the amount of $20,000.00 in consideration of Plaintiff's promise to halt all foreclosure proceedings. A true and correct copy of the correspondence from Todd Perry to Plaintiff accompanying the $20,000.00 certified check is attached hereto as Exhibit "B" and is incorporated herein by reference. 13. The $20,000.00 certified check, sent by Defendant, Todd Perry, was accepted and cashed by Plaintiff. 14. Plaintiff accepted the terms of Defendant, Todd Perry's, offer to halt foreclosure proceedings, by cashing the $20,000.00 certified check forwarded to it by Defendant, Todd A. Perry. 15. Unaware of the alleged Sheriff's Sale in Cumberland County, Pennsylvania, Defendant, Todd A. Perry, obtained a new homeowners' insurance policy in approximately November 2006, listing Plaintiff as Mortgagee. A true and correct copy of the Declarations page showing the effective date of the Insurance Policy is attached hereto as Exhibit "C" and is incorporated herein by reference. 16. Plaintiff was made aware of the Insurance Policy obtained by Defendant, Todd Perry, in November 2006, and set forth no objections. 17. Plaintiffs acceptance of the $20,000.00 in consideration of its promise to halt foreclosure proceedings, constitutes a valid agreement which therefore bars Plaintiff's current action in ejectment. 4 WHEREFORE, Defendants, Todd A. Perry, Carrie Perry, Carrie A. Malley, Bill J. Nickey, and Care] A. Nickey, hereby respectfully request that this Honorable Court dismiss Plaintiff's Civil Action - Ejectment action with prejudice and further request that this Honorable Court grant Defendants such further relief as is just and proper. Respectfully submitted, COFF, P: Date: Januar6 , 2007 I ^.Ilome'TLP,ANSWFRS',PFRRY.?N,pd By: VI/(tk ooerL <,nejn;i?II, uire a. Su re me Court I .D. #23380 Kelly M. Knight, Esquire Pa. Supreme Court I.D. #87365 2320 North Second Street Harrisburg, PA 171 10 (717) 238-6570 Attorneys for Defendants 5 EXHIBIT "A" FORBEARANCE AGREEMENT Mortgagor: Todd and Carrie Perry ("Borrowers") Note Holder: LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9, c/o Wilshire Credit Corp., its servicing agent ("Wilshire") Loan number: 243812 Property address: 5008 Greenwood Circle, Enola, PA 17025-1289 (the "Property") WHEREAS, Borrowers executed a note payable to Wilmington Finance, Inc. ("Wilmington"), dated April 25, 2003, in return for a loan made to Borrowers in the amount of $400,000.00 (the "Note"); and WHEREAS, Borrowers conveyed a mortgage dated April 25, 2003 to Wilmington to secure payment under the Note (the "Mortgage," and collectively with the Note, the "Loan"); and WHEREAS, the Loan was subsequently assigned to LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9; and WHEREAS, Borrowers are obligated under the Note to make a monthly payment of principal and interest in the amount of $3,795.12; and WHEREAS, Borrowers have defaulted under the terms of the Loan by reason of, without limitation, the failure to make all payments under the Note; and WHEREAS, Borrowers and Wilshire agree that the total amount due and unpaid as of August 14, 2006 is $79,370.12 (the "Arrears"); and WHEREAS, Borrowers received an Act 91 notice of their rights to file for relief with the Pennsylvania Housing Finance Agency ("PHFA»); and WHEREAS, Borrowers and Wilshire have agreed to enter into a plan of payment for the Arrears in order to avoid commencement and/or continuation of legal proceedings in the nature of foreclosure and/or other remedies available to Wilshire as a result of Borrowers' default under the Loan. NOW THEREFORE, in consideration of the foregoing recitals, the mutual covenants of the parties set forth hereunder, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. INTITIAL PAYMENT: On or before August 29, 2006, Borrowers shall pay the sum of $20,000.00 by certified check, attorneys' check or money order made payable to Wilshire Credit Corporation, with loan number 243812 noted thereon, to counsel for Wilshire at Kerns, Pearlstine, Onorato & Hladik, LLP, 425 W. Main Street, Lansdale, PA 19446, attention Stephen M. Hladik, Esquire. 2. MONTHLY PAYMENTS: Beginning with the monthly payment due September 23, 2006, and continuing through November 23, 2006, on the Twenty-third day of each month, Borrowers shall pay to Wilshire, by certified check or money order, the sum of Four Thousand Five Hundred Fifty Dollars ($4,550.00). These payments shall be forwarded directly to Wilshire at P.O. Box 7195, Pasadena, CA 91109-7195. From each payment, the sum of $754.88 shall be applied against the Arrears. Upon successful completion of the above payments (and all monthly mortgage payments), Borrowers shall: (a) Contact Wilshire Credit Corporation to receive a final statement as to any outstanding arrears; (b) Borrowers shall pay to Wilshire Credit Corporation all outstanding arrears to Wilshire ten (10) days of receipt of said statement from Wilshire. As the amount being applied to the Arrears through this Agreement is insufficient to reinstate the Mortgage, it is the responsibility of Borrowers to contact Wilshire prior to expiration of this Agreement to obtain the statement of outstanding arrears or foreclosure proceedings may commence or continue without further notice upon receipt of the last payment on this plan. 3. HAZARD INSURANCE: Borrowers agrees to keep the Property insured at all times against loss due to fire or other natural hazards in accordance with the terms of the Mortgage. Borrowers understand that they are responsible for renewing the hazard insurance policy prior to expiration. 4. FEES/COSTS: Borrowers acknowledges responsibility for payment of all costs and fees currently incurred or hereafter incurred by Wilshire, including, but not limited to, foreclosure legal fees/costs, bankruptcy fees/costs, property preservation/inspections, negative escrow balances/initial escrow balance requirements, and NSF fees, in the course of preserving and protecting its rights hereunder pursuant to the Loan. 5. PREPAYMENT: If all of the Arrears (in addition to the $22,264.64 which will have been paid if Borrowers makes all payments pursuant to section 2 of this Agreement) are paid by Borrowers prior to November 23, 2006, this Agreement shall terminate and the monthly payments required by the original Note and Mortgage shall be reinstated. The amount of the original escrow payment, however, may be adjusted to reflect any increases in property taxes assessed against the Property prior thereto. 6. TERMINATION CONDITIONS: Wilshire may terminate this Agreement if: (a) Borrowers permanently leave or vacate the Property. (b) Borrowers sell or convey any interest in the Property, Note or Mortgage. (c) The facts or circumstances that caused Wilshire to enter into this Agreement substantially change. (d) Borrowers fail to comply with any terms of this Agreement or the original Note and Mortgage. 7. REMEDIES: If Wilshire terminates this Agreement for any of the above conditions, Borrowers agree that Wilshire may, in its sole discretion: (a) Enter into a new agreement to satisfy the Arrears; or (b) Return to the original terms of the Note or Mortgage; or (c) Continue or commence any remedy available to it under the Note or Mortgage, including, but not limited, to mortgage foreclosure. 8. WAIVER OF DEFENSES: In consideration of Wilshire's agreement to enter into this Forbearance Agreement, Borrowers expressly waive any and all defenses, if any, they may have had with regard to the default under the Loan. If by virtue of a termination of this Agreement, Wilshire elects to commence or continue a foreclosure action, Borrowers acknowledge that they have voluntarily and knowingly relinquished any and all defenses with regard to the default under the Loan, and they will not and acknowledge that they cannot raise same in the foreclosure proceeding. Borrowers jointly and severally release, discharge, and covenant not to sue "Wilshire," any owners of the Loan, and any of their predecessors, successors, and parent corporations from any and all claims, causes of action, defenses, whether known or unknown, which Borrowers had, now have or may hereinafter acquire, which relate to, or are in any way, connected with the Loan or the acts or omissions of any related parties. Notwithstanding any other paragraph of this Agreement, this provision shall remain in full force and effect upon execution by the Borrowers, and shall survive this Agreement. Borrowers also agree, as a condition to Wilshire's acceptance of this Agreement, to execute Acceptances of Service of the previously filed action in mortgage foreclosure. 9. NOTICE: All Borrowers acknowledge receiving any and all applicable notices of intent to foreclose, including, but not limited to an Act 6, Act 91 and/or Act 160 notices. Borrowers acknowledges that, if by virtue of a termination of this Agreement, Wilshire elects to continue or commence an action in mortgage foreclosure, that no further notice (including any Act 91, 6, or 160 notice) to Borrowers shall be necessary to do so. 10. ORIGINAL NOTE AND MORTGAGE: Borrowers understand that all rights and obligations of the original note and Mortgage, except as modified herein, remain in full force and effect, and that when this Agreement expires, the monthly payments originally due under the note and Mortgage shall be paid by Borrowers in accordance with their terms, unless Wilshire agrees, in its sole discretion, to renew, amend, or extend this Agreement. 11. ESCROW: If no escrow for payments of taxes and insurance has been established with Wilshire, Borrowers agree to ensure that taxes on the Property securing the Loan are kept current and that the Property is properly insured. Wilshire at its sole discretion may request that Borrowers provide proof of tax status and property insurance coverage. I have read and understand the terms and conditions of this Agreement. I hereby agree to the terms and conditions set forth above. I acknowledge a receipt of a copy of this Agreement. Todd Perry Carrie Perry Wilshire Credit Corp By: Name: Title: Date: Date: Date: (File #16-793) EXHIBIT "B" Mr. Hladik and to whom it may concern at Wilshire, Sorry for not sending a certified check. We have had more time to review your forbearance agreement and find it filled with "legalese". In reviewing our situation more thoroughly, Carrie and I have decided not to continue with Wilshire as our mortgage company for many reasons. Please do not forward the previous agreement to Wilshire for their signature. We would lice to create a second mortgage with her parents to pay down some of the arrearages and look to refinance our mortgage with Wilshire within 3 months. We will keep you apprised of our efforts. Worst case scenario, my brother has agreed to pay off Wilshire if we can't obtain a new mortgage on our own by the end of the year. Please accept this certified check from Carrie's parents in the amount of $20,000 as agreeing to these new terms. If you need more to pay down the arrearages, please kt me know. Otherwise, I will assume the foreclosure proceedings to be halted upon Wilshire cashing this check. Sincerely, Todd Perry EXHIBIT "C" 100 State Farm Place Ballston Spa, NY 12020-8000 Named Insured P-13-6361-F381 F H PERRY, TODD & CARRIE 5008 GREENWOOD CIR ENOLA PA 17025-1289 Utt:LAHA I IUNS NAtat Policy Number 38-OA-6176 Policy Period Effective Dat 12 Months NOV 16 2006 The policy, period begins and en standard me at the residence F Loan i 243812 Mortgagee WILSHIRE CREDIT CORP ITS SUCCESSORS AND/OR ASS PO BOX 80959 PORTLAND OR 97280-0959 HOMEOWNERS POLICY Automatic Renewal - If the policy period is shown as 12 months, this policy will be renewed automat premiums, rules and forms in effect for each succeeding policy period. If this policy is terminated, we wi Mortgagee/Lienholder written notice in compliance with the policy provisions or as required by law. Location of Residence Pren Same as Insured's Address Coverages SECTION 1 A Dwelling Dwelling Extension up to B Personal Property C Loss of Use SECTION II L Personal Liability Each Occurrence) t t P y roper amage o of Others M Medical Payments to Others (Each Person) Limits of Liability 433,08 322'50 Actual toss Sustained $ 500,000 $ 500 $ 5,000 Lose Settlement Provision (See Policy) Al Replacement Cost - Similar Construction 61 Limited Replacement Cost - Coverage B Forms, Options, & Endorsements Homeowners Policy FP-7955 Amendatory Endorsement FE-7269 Fungus (Including Mold) Excl FE-5398 Telecommuter Coverage FE-5831 Motor Vehicle Endorsement FE-5452 Policy Endorsement FE-5320 Jewelry and Furs $2,500 Each Option JF Articlei$5,000 Agggre ate Increase Dwlg Upto f 86,000 Option ID Inflation Coverage Index: 209.7 Deductibles - Section 1 All Losses $ In case of loss under this policy, the dedu• per occurrence and will be deducted from loss. Other deductibles may apply - refer t Policy Premium Discounts Applied: Utility Rating Cr Claim Free Other limits and exclusions niay apply - refer to your policy Your policy. consists of this page, any endorsements and the policy form. Please keep these together. FP-7001.6C Continued on Reverse KLAUDIA CHILCOAT 1286 1 51 1 717.791.1 FRG vvIr I IIV%J ..v a nvIVI I nWIV I vwa- Please refer to the enclosed insert for additional details. State Farma works hard to offer you the best combination of price, service, and protection. The amount yc homeowners insurance is determined by many factors such as the coverages you have, the type of consti likelihood of future claims, and information from consumer reports. VERIFICATION 1, Todd A. Perry, verify that the statements made in the foregoing Answer and New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. Todd A. Perry i Date: 2007 LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CERTIFICATE OF SERVICE I do hereby state that oil thez4hay of January, 2007, I served a true and correct copy of DEFENDANTS' ANSWER TO CIVIL ACTION - EJECTMENT in the above-captioned matter, by placing the same in the United States mail, first-class, postage prepaid, in Harrisburg, Pennsylvania, addressed to: Stephen M. Hladik, Esquire Kerns, Pearlsteine, Onorato, Fath, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 CUNNINGHAM & CHERNICOFF, P.C. By: Stacy A. Soll erger KERNS, PEARLSTINE, ONORATO & FATH, LLP STEPHEN M. HLADIK, ESQUIRE ATTORNEY I.D. NO. 66287 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 (215 855-9521 Attorney For Plaintiff LASALLE BANK NATIONAL ASSOC., as COURT OF COMMON PLEAS OF Trustee for Structured Asset Investment CUMBERLAND COUNTY. PA Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025, Defendants NO: 06-7215 PLAINTIFF'S REPLY TO NEW MATTER CD Plaintiff; LaSalle Bank National Assoc., as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c/o Wilshire Credit Corporation, by and through its undersigned counsel, hereby files the within Reply to New Matter, and in support thereof avers the following: 9. Plaintiff incorporated its allegations I through 8 as though set forth at length herein. 10. It is admitted that Defendants defaulted under their Mortgage. It is also admitted that in order to give the Perrys an additional chance to try and come current on their Mortgage, Plaintiff offered a Forbearance Agreement to the Defendants. I 1. It is admitted that, per the terms of the Forbearance Agreement that the Defendants were to provide certified funds in the amount of $20,000.00 before August 20, 2006. It is also admitted that Defendants sent a personal check and, therefore, the funds were returned to the Defendants. By way of further reply, the Forbearance Agreement is a writing that speaks for itself and any characterization by the Defendants is denied. 12. It is admitted that Defendants sent a certified check in the amount of $20,000.00. It is admitted that those funds were applied and Plaintiff cancelled the foreclosure proceeding, which was scheduled on August 28, 2006. By way of further reply, per the Forbearance Agreement at paragraph 2, the Defendants were to continue paying the sum of $4,550.00 per month, beginning September 23, 2006. From that sum $754.88 were to be applied against their arrears. At the time of the origination of the Forbearance Agreement; Defendants admitted that their Mortgage was in arrears in the amount of $79,370.12. Thus, the $20,000.00 down payment did not even remotely come close to bringing their Mortgage current. 13. It is admitted that the down payment was accepted. By way of further reply, per the obligation to make payments on a monthly basis thereafter, Defendants defaulted and failed to make their payments. 14. It is admitted that Plaintiff accepted the $20,000.00. By way of further reply, Plaintiff did cancel the Sale scheduled for August, 2006. 15. Plaintiff is without information sufficient to admit or deny why Defendant was unaware of a Sheriff's Sale scheduled or whether he obtained a new insurance policy. Nevertheless, Defendant had breached his obligations of the Forbearance Agreement to make monthly payments. Therefore, Plaintiff was entitled to proceed to Sheriff's Sale. Per paragraph 9 of the Forbearance Agreement, Defendants agreed, "Borrowers acknowledge that, if by virtue of a termination of this Agreement, Wilshire elects to continue or commence an action in mortgage foreclosure, that no further notice (including any Act 91, 6 or 160 notice) to Borrowers shall be necessary to do so." 16. It is admitted that Defendant forwarded the insurance, though whether Plaintiff was aware of insurance or not is irrelevant to the fact that the property was scheduled for Sheriff's Sale. 17. Denied. In compliance with the Forbearance Agreement, Plaintiff did cancel the Sheriff's Sale scheduled for August 28, 2006. By virtue of the Defendants' default under the Forbearance Agreement thereafter, Plaintiff was entitled to proceed to Sheriff's Sale, which Sale occurred on December 6, 2006. By way of further reply, the Deed vesting ownership of the property in Plaintiff was recorded on January 4, 2007 in the Cumberland County Recorder of Deeds at Book 278. Page 1273, thus evidencing conclusively Plaintiff's right to possession of the premises. WHEREFORE, Plaintiff hereby respectfully requests that this Honorable Court dismiss Defendants' New Matter. Date: RESPECTFULLY SUBMITTED, KERNS, PE STINE, ONORATO & HLADIK, BY: Stephen M. ik. Esquire Attorney for Plaintiff VERIFICATION Stephen M. Hladik, Esquire, hereby states that he is the attorney for Plaintiff in this action; that he is authorized to and does take this Verification on behalf of said Plaintiff; and that the statements made in the foregoing Reply to New Matter are true and correct to the best of his knowledge, information and belief, and are based on information supplied to him by said Plaintiff. The undersigned understands that the statements herein are made subject to the penalties of 18 PA. C.S. §4904, relating to unsworn falsification to authorities. Date: Stephen M. Hladik, Esquire Attorney for Plaintiff KERNS, PEARLSTINE, ONORATO & FATH, LLP STEPHEN M. HLADIK, ESQUIRE ATTORNEY I.D. NO. 66287 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 (215 855-9521 Attorney For Plaintiff LASALLE BANK NATIONAL ASSOC., as COURT OF COMMON PLEAS OF Trustee for Structured Asset Investment CUMBERLAND COUNTY, PA Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff V. NO: 06-7215 TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025, Defendants CERTIFICATE OF SERVICE I, Stephen M. Hladik, Esquire, hereby certify that I served a true and correct copy of the foregoing pleading, on the person below, via first class mail, on February 2, 2007: Robert E. Chernicoff, Esquire Kelly M. Knight, Esquire CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 17110 Date: Stephen M. Hladi quire Attorney for Plaintiff (2,- Tax Parcel No. 10-14-0840-100 -_z Knnw all Men b?these Presents ? iG? ?f ?il? `? 2? That 1; R. Thomas Kline, Sheriff of the County of Cumberland, In the State of Pennsylvania, for and in consideration of the sum of $1.00, (One Dollar), to me in hand paid, do hereby grant and convey to LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c/o Wilshire Credit Corporation. REAL ESTATE SALE NO. 42 Writ No. 2006-1093 Civil Term LaSalle Bank National Association as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 Vs Todd A. Perry and Carrie Perry Atty: Stephen Hladik DESCRIPTION ALL THOSE CERTAIN tract of land, situate in Township of Hampden, Cumberland County, Pennsylvania known as Lot No. 5 on Subdivision Plan of Greenwood Estates recorded in the Office of the Recorder of Deeds of Cumberland County in Plan Book 76, Page 128, more particularly bounded and described as follows: BEGINNING at a point being the Southwest corner of Lot No. 4 on the aforesaid Plan; thence South 47 degrees, 55 minutes, 45 seconds East along the said Lot No. 4 a distance of 171.76 feet to a point in the cul- de-sac of Greenwood Circle proposed; thence along the curve of the cul-de-sac a length of 104.99 feet with a radius of 60 feet to a proposed concrete monument on the cul-de-sac of Greenwood Circle proposed: thence South 31 degrees, 49 minutes, 00 seconds West along formerly of Howell P. Carper and Lynn P. Carper, north 85 degrees, 33 minutes, 49 seconds West a distance of 112.45 to a point; thence along lands now or formerly of Parnay Development Company, Inc. North 1 I degrees, 34 minutes, 54 seconds East a distance 370.69 feet to a point, the place of BEGINNING. CONTAINING therein 46,588.29 square feet, more or less or 1.0695 acres more or less. BEING PARCEL NO. 10-14-0840-0100. BEING THE SAME premises which KBG Associates. LLC, a PA Limited Liability Company, by deed dated 9/11/2001 and recorded 9/13/2001 in the Recorder of Deeds Office in and for Cumberland County; Pennsylvania in Book 248 Page 1852, granted and conveyed unto Todd A. Perry and Carrie Perry, husband and wife as tenants by the entirety. 1?0? v r4 -2"3 UL 1, - t The same having been sold by me to the said grantee on the 6th day of December Anno Domini Two Thousand and Six 2t 006) after due advertisement according to law, under and by Virtue of a Writ of Execution issued on the 26th day of Anril Anno Domini 2006 out of the Court of Common Pleas of Cumberland County, Pennsylvania, as of Civil Term, Two Thousand and Six 2( 006) Number 1093 at the suit of LaSalle Bank National Association as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 against Todd A. Perry and Carrie Perry. In Witness Whereof; l have hereunto affixed my signature this 20thday of December Anno Domini Two Thousand and Six (2006) Commonwealth of Pennsylvania, ss. County of Cumberland R. Thomas Kline, Sheriff Before the undersigned, Curtis R. Long, Prothonotary of the Court of Common Pleas of Cumberland County, Pennsylvania, personally appeared R. Thomas Kline. Sheriff of Cumberland County aforesaid, and in due form of law declared that the facts Set forth in the foregoing Deed are true, and that he acknowledged the same in order that Said deed might be recorded. Witness my hand and seal of said Court, this 20th day of Dec. Anno Domini Two Thousand and Six (2006) .F,: [l y4 .1?c 1 Certify this Iv be n Cumberland rt?e?;l ?'ed COUnt,, PA Recor(Ier of Deeds PROTHONOTARY, NOTARY PUBLIC CARLISLE CUMBERI AND COUNTY COURTHOUSE MY COMMISSION E)FIRES JANUARY 4, 2010 I hereby certify-that the residence And Post Office address of the Within Grantee is 14523 SW Millikan Way, Suite 200 Beaverton, OR 97005 Solicitor STEPHEN M. HLADIK, ESQUIRE ATTORNEY FOR PLAINTIFF ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & HLADIK, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 (215) 855-9521 LASALLE BANK NATIONAL ASSOC., as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200 Beaverton, OR 97005, PLAINTIFF, V. TODD A. PERRY CARRIE PERRY CARRIE A. MAILEY BILL J. NICKEY CAREL A. NICKEY and ANY AND ALL UNKNOWN OCCUPANTS 5008 Greenwood Circle Enola, PA 17025, DEFENDANT. CERTIFICATE OF SERVICE I, Stephen M. Hladik, Esquire, hereby certify that I served a true and correct copy of the foregoing Motion for Summary Judgment and Brief in Support thereof via first class mail, on March 19, 2007: COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO: 06-7215 Robert E. Chernicoff, Esquire Kelly M. Knight, Esquire CUNNINGHAM & CHERNICOFF, P.C. 2320 North Second Street Harrisburg, PA 17110 (-Aj Date: Ad Stephen M. Hla Attorney for Pla -4- Esquire C : ?rY F n a = > ,. ? r%o W t? ? LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-7215 Civil Term ANSWER TO MOTION FOR SUMMARY JUDGMENT AND NOW COMES the Defendants, by and through their counsel, Bruce J. Warshawsky, Esquire and Cunningham & Chernicoff, P.C., to Answer the Motion for Summary Judgment filed in this case as follows: 1. Admitted upon information and belief. 2. Admitted. 3. Admitted upon information and belief. 4. Admitted. 5. Admitted in part and denied in part. It is admitted that the Plaintiff purchased the Real Property located at 5008 Greenwood Circle, Enola, Cumberland County, Pennsylvania 17025-1298 (the "Property"), at the Cumberland County Sheriff Sale. By way of further answer, said Sheriff Sale occurred on December 7, 2006. With respect to the Deed attached to Plaintiffs Motion for Summary Judgment marked as Exhibit "D", said Deed is a document which speaks for itself. By way of further answer, Plaintiffs purchase of the Property and Plaintiffs right to possess said Property, is impaired by virtue of a. The fraud Wilshire perpetrated in connection with the prior mortgage foreclosure action; and b. The grossly inadequate price paid for the Property by the Plaintiff at the December 7, 2006 Sheriff Sale, as is more specifically set forth in the attached Affidavit of Todd A. Perry. 6. Admitted in part and denied in part. It is admitted that the Sheriff Sale was conducted by virtue of a Writ of Execution as stated, however, it is denied as stated that the Sheriff Sale was conducted to satisfy the Judgment entered at docket number 06-7215, but rather to satisfy the Judgment entered to the docket number 06-1093 (the "Foreclosure Action"). It is further admitted that the Sheriff Sale was originally scheduled for sale in September, 2006. It is specifically denied that the Plaintiff agreed to forbearance with the Defendants and postponed the Sale until December 6, 2006. To the contrary, and by way of further Answer, as is more specifically set forth in the attached Affidavit of Todd A. Perry, the agreement for forbearance was open-ended and was to have continued until the Defendant secured a successor mortgage for the Property. The remaining averments of the Paragraph are denied as stated for the reasons which are more specifically set forth in the attached Affidavit of Todd A. Perry. Further, Defendants relied upon the representations and fraudulent conduct of the Plaintiff to their detriment and such representations induced Defendants to act. By way of further response, the Plaintiff, LaSalle Bank National Assoc. is, was, and at all times acted as the agent of its beneficiary (as Trustee) of Wilshire Credit Corporation ("Wilshire"), the Plaintiff in the Foreclosure Action. The Answer to this Paragraph also incorporate by reference, the attached Affidavit of Todd A. Perry. 7. The averments of this Paragraph are legal conclusions to which no response is required. 8. Admitted. By way of further response, Plaintiffs right to possession of the Property is impaired because of Wilshire's fraud and the grossly inadequate price paid at the December 7, 2006 Sheriff Sale as is more specifically set forth in the attached Affidavit of Todd A. Perry. 9. The averments of this Paragraph are legal conclusions to which no response is required. WHEREFORE, the Defendants respectfully request that the Motion for Summary Judgment be denied and award Defendants its costs, attorney fees and other just relief the Court deems appropriate. Date: April 17, 2007 By: Warshawsky, Esquire 2320 North Front Street Harrisburg, PA 17110 Telephone: (717) 238-6570 PA ID No: 58799 EXHIBIT `A' LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-7215 Civil Term AFFIDAVIT 1. My name is Todd A. Perry and I reside at 5008 Greenwood Circle, Enola, Cumberland County, Pennsylvania 17025 (the "Residence"). 2. I am one of the Defendants in the above-captioned action. 3. In April, 2006, my wife, Carrie Perry, and I received the Notice of Sheriff Sale of Real Property, a true and correct copy of which is attached hereto as Exhibit "A", relating to my Residence. 4. Notice of the Sheriff Sale was also posted at the Residence in April, 2006, for a Sheriffs Sale to take place on September 6, 2006. 5. Following receipt of the Notice of Sheriff Sale, I attempted to negotiate an Agreement with the Plaintiff, Wilshire Credit Corporation ("Wilshire") for a Forbearance of the mortgage foreclosure action due to personal health and family circumstances. 6. Our negotiations with Wilshire were on-going and my wife and I were presented with a Forbearance Agreement for our signature sometime in August, 2006, just weeks before the scheduled Sheriff Sale date of September 6, 2006. The Forbearance Agreement is attached hereto as Exhibit "B". 7. My wife and I forwarded a check in the amount of $20,000.00 to Wilshire on or about August 20, 2006 and the check was returned to us because it was not certified. 8. On or about August 28, 2006, we forwarded to Wilshire a certified check in the amount of $20,000.00 along with correspondence, which is attached hereto as Exhibit "C" and which states, in pertinent part: "Please accept this certified check from Carrie's parents in the amount of $20, 000.00 as agreeing to these new terms. If you need more to pay down the arrearage, please let me know. Otherwise, I will assume the foreclosure proceeding to be halted upon Wilshire cashing this check. " 9. Wilshire did not contact me after I sent the attached Exhibit "C", and I began the process of securing another mortgage and did not comply with any of the other terms and conditions, including, but not limited to, the additional payment requirements under the Forbearance Agreement (Exhibit "A"), because I believed that Wilshire had accepted the new terms communicated as an accord and satisfaction. 10. Wilshire cashed the $20,000.00 certified check and the Sheriff Sale of September 6, 2006 did not occur. 11. Following the payment of the $20,000.00, no new Notice of any Sheriff Sale was provided to me or my wife nor was any such Notice posted at my Residence after September 6, 2006. 12. On October 26, 2006, I received from Wilshire a facsimile requesting additional information relating to our financial status which I believed to be relevant to our outstanding mortgage with Wilshire and their forbearance. A copy of that letter dated October 26, 2006 is attached as Exhibit "D". 13. I provided Wilshire with the financial information requested pursuant to its October 26, 2006 correspondence. 14. Wilshire then notified us that continued hazard insurance was required for the Residence by letter dated November 16, 2006. A copy of that letter is attached as Exhibit "E". 15. In reliance upon Wilshire's promise to forbear in further proceedings relating to the mortgage foreclosure, I attempted to secure a second mortgage and, further, obtained a new homeowners policy in November, 2006, listing Wilshire as the mortgagee and additional insured. A copy of the Declaration Page relating to the insurance is attached hereto as Exhibit "F". 16. I heard nothing further from Wilshire after providing the required financial information and proof of insurance. 17. I did not learn about the Sheriff Sale my Residence, which apparently occurred on December 7, 2006, until I was served with this Ejectment Action on December 28, 2006. 18. In late January, 2007, my wife, Carrie Perry, received the attached Form 1099-A, (Exhibit "G"), which indicates that Wilshire placed a fair market value of the Residence at $540,000.00. 19. Wilshire provided me with no Notice of the second Sheriff Sale in December, 2006. 20. In November, 2006, I checked the Cumberland County Sheriffs website and did not see the Residence listed for Sheriff Sale on December 7, 2006. 21. Wilshire's continued conduct in requesting financial information and demanding insurance coverage was consistent with our Forbearance Agreement and I relied upon their actions consistent therewith. 22. Wilshire intended to defraud me into believing that the mortgage foreclosure was in forbearance and that no Sheriff Sale of the Residence would occur. 23. I had numerous telephone conversations and was left numerous voice mails from Wilshire, from May, 2006 up through and including November, 2006, in which Wilshire recognized its forbearance on the mortgage foreclosure and continued to induce me to act under our Forbearance Agreement as described above. 24. The fair market value of the Residence was a primary motivating factor for Wilshire to breach our Forbearance Agreement and perpetuate their fraud by continuing their representations and failing to provide me with Notice of the December, 2006 Sheriff Sale. 25. The sale of the Residence at the December 7,2006 Sheriff Sale was at a price which was grossly inadequate to the fair market value of the Residence Wilshire placed on it. 26. Wilshire and the Plaintiff, in this case, LaSalle, Wilshire's Trustee are one and the same as illustrated by the fact that they have the same counsel and that LaSalle, as Wilshire's agent, purchased the Residence with a credit bid at the December 7, 2006 Sheriff Sale. FURTHER AFFIANT SAYETH NOT. Todd A. Perry Sw(gn to before e this 19 fiJ day of , 2007 COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL JULIEANNE AMETRANO, Notary Public City of Harrisburg, Dauphin County My Commission Expires Feb. 22, 2011 EXHIBIT `A' STEPHEN M. HLADIK, ESQUIRE ATTORNEY FOR PLAINTIFF ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & FATH, LLP 425 West Main Street, P.O. Box 29, Lansdale, PA 19446-0029 (215) 855-9521 LaSalle Bank National Association as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9, c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200, Beaverton, OR 97005-, PLAINTIFF, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO: 06-1093 V. Todd A. Perry Carrie Perry 5008 Greenwood Circle, Enola, PA 17025, DEFENDANT(S). NOTICE OF SHERIFF'S SALE OF REAL PROPERTY To: Carrie Perry 5008 Greenwood Circle, Enola, PA 17025 Real estate situate at 5008 Greenwood Circle, Enola, Cumberland County, PA 17025, as more fully set forth on Exhibit "A" attached hereto, is scheduled to be sold at Sheriffs Sale on Wednesday, September 6, 2006, at 10:00a.m. in the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania, 17013, to enforce the Court Judgment of Four Hundred Thirty-Four Thousand Three Hundred Seventy-Three Dollars Thirty Cents ($434,373.30), (plus any additional interest and costs) obtained by LaSalle Bank National Association as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9, against you. NOTICE OF OWNER'S RIGHTS YOU MAY BE ABLE TO PREVENT THIS SHERIFF'S SALE To prevent this Sale you must take immediate action. The Sale will be stopped if you pay LaSalle Bank National Association as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9, (c/o Wilshire Credit Corp.), back payments, late charges, costs, and reasonable attorneys' fees due. To find out how much you must pay, you may call: Stephen M. Hladik, Esquire 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 Telephone number 215-855-9521 1. You may be able to stop the Sale by filing a petition asking the Court to strike or open the judgment, if the judgment was improperly entered. You may also ask the Court to postpone the Sale for good cause. 2. You may be able to stop the Sale through other legal proceedings. You may need an attorney to assert your rights. The sooner you contact one, the more chance you will have of stopping the Sale. (See below to find out how to obtain an attorney). YOU MAY STILL BE ABLE TO SAVE YOUR PROPERTY AND HAVE OTHER RIGHTS EVEN IF THE SHERIFF'S SALE DOES TAKE PLACE. 1. If the Sheriffs Sale is not stopped, your property will be sold to the highest bidder. You may find out the price bid by calling the Sheriff of Cumberland County at (717) 240-6100. 2. You may be able to petition the Court to set aside the Sale if the bid price was grossly inadequate compared to the value of your property. 3. The Sale will go through only if the buyer paid the Sheriff the full amount due in the Sale. T o find out if this happened, you may call the Sheriff of Cumberland County at (717) 240-6100. 4. If the amount due from the buyer is not paid to the Sheriff, you will remain the owner of the property as if the Sale never happened. 5. You have a right to remain in the property until the full amount due is paid to the Sheriff and the Sheriff gives a deed to the buyer. At that time, the buyer may bring legal proceedings to evict you. 6. You may be entitled to a share of the money which was paid for your house. A Schedule of Distribution of the money bid for your house will be filed by the Sheriff on or before October 6, 2006. This schedule will state who will be receiving the money. The money will be paid out in accordance with this schedule unless exceptions (reasons why the proposed distribution is wrong) are filed with the Sheriff within ten (10) days after filing the Schedule of Distribution. 7. You may also have other rights and defenses, or ways of getting your property back, if you act immediately after the sale. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE: CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE CARLISLE, PA 17013 717-249-3166 OR 800-990-9108 Respectfully submitted, KERNS, PEARLSTINE, ONORATO 8 FATH, LLP Date: By: Steph - . Hladik, Esquire Attorney for Plaintiff • EXHIBIT A • File No. LST179-906 ALL THOSE CERTAIN tract of land, situate in Township of Hampden, Cumberland County, Pennsylvania lmown as Lot No. 5 on Subdivision Plan of Greenwood Estates recorded in the Office of the Recorder of Deeds of Cumberland County in Plan Book 76, Page 128, more particularly bounded and descnbed as follows: BEGINNING at a point being the Southwest comer of Lot No. 4 on the aforesaid Plan; thence South 47 degrees, 55 minutes, 45 seconds East along the said Lot No. 4 a distance of 171.76 feet to a point in the cul-de-sac of Greenwood Circle proposed; thence along the curve of the cul-de-sac a length of 104.99 feet with a radius of 60 feet to a. proposed concrete monument on the cul-de-sac of Greenwood Circle proposed; thence South 31 degrees, 49 minutes, 00 seconds West along formerly ofHowell P. Carper and Lynn P. Carper, north 85 degrees, 33 minutes, 49 seconds West a distance of 112.45 to a point; thence along lands now or formerly of Parnay Development Company, Inc. North 11 degrees, 34 minutes, 54 seconds East a distance 370.69 feet to a point, the glace of BEGINNING. CONTAINING therein 46,588.29 square feet, more or less or 1.0695 acres more or less. BEING PARCEL Number 10-14-0840-0100. BEING THE SAME premises which KBG Associates, LLC, a PA Limited Liability Company, by deed dated 9/11/2001 and recorded 9/13/2001 in the Recorder of Deeds Office in and for Cumberland County, Pennsylvania in Book 248 Page 1852, granted and conveyed unto Todd A. Perry and Carrie Perry, husband and wife as tenants by the entirety. WRIT OF EXECUTION and/or ATTACHMENT COMMONWEALTH OF PENNSYLVANIA) COUNTY OF CUMBERLAND) N006-1093 Civil CIVIL ACTION - LAW TO THE SHERIFF OF CUMBERLAND COUNTY: To satisfy the debt, interest and costs due LASALLE BANK N A AS TRUSTEE FOR STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC 9 Plaintiff (s) From TODD A. AND CARRIE PERRY, 5008 GREENWOOD CIRCLE, ENOLA PA 17025. (1) You are directed to levy upon the property of the defendant (s)and to sell REAL ESTATE LOCATED AT 5008 GREENWOOD CIRCLE, ENOLA PA 17025 (SEE LEGAL DESCRIPTION). (2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of GARNISHEE(S) as follows: and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant (s) or otherwise disposing thereof; (3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a garnishee and is enjoined as above stated. Amount Due $434,373.30 L.L. $.50 Interest FROM 4/6/06 - $17,070.21 @ THE AGGREGATE DAILY RATE OF $111.57 Atty's Comm % Atty Paid $139.20 Plaintiff' Paid Date: APRIL 26, 2006 Due Prothy $1.00 Other Costs CURTIS R. LONG Prothonotary (Seal) By: Deputy REQUESTING PARTY: Name STEPHEN M. HLADIK, ESQ. Address: 425 W. MAIN ST., P O BOX 29 LANSDALE PA 19446-0029 Attorney for: PLAINTIFF Telephone: (215) 855-9521 Supreme Court ID No. 66287 'a Real Estate Sale # 42 On May 30, 2006 the Sheriff levied upon the defendant's interest in the real property situated in Hampden Township, Cumberland County, PA Known and numbered as 5008 Greenwood Circle, Enola, more fully described on Exhibit "A" filed with this writ and by this reference incorporated herein. Date: May 30, 2006 By: Real Estate Sergeant r - j EXHIBIT ?B? FORBEARANCE AGREEMENT Mortgagor: Todd and Carrie Perry ("Borrowers") Note Holder: LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9, c/o Wilshire Credit Corp., its servicing agent ("Wilshire") Loan number: 243812 Property address: 5008 Greenwood Circle, Enola, PA 17025-1289 (the "Property") WHEREAS, Borrowers executed a note payable to Wilmington Finance, Inc. ("Wilmington"), dated April 25, 2003, in return for a loan made to Borrowers in the amount of $400,000.00 (the "Note"); and WHEREAS, Borrowers conveyed a mortgage dated April 25, 2003 to Wilmington to secure payment under the Note (the "Mortgage," and collectively with the Note, the "Loan"); and WHEREAS, the Loan was subsequently assigned to LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9; and WHEREAS, Borrowers are obligated under the Note to make a monthly payment of principal and interest in the amount of $3,795.12; and WHEREAS, Borrowers have defaulted under the terms of the Loan by reason of, without limitation, the failure to make all payments under the Note; and WHEREAS, Borrowers and Wilshire agree that the total amount due and unpaid as of August 14, 2006 is $79,370.12 (the "Arrears"); and WHEREAS, Borrowers received an Act 91 notice of their rights to file for relief with the Pennsylvania Housing Finance Agency ("PHFA"); and WHEREAS, Borrowers and Wilshire have agreed to enter into a plan of payment for the Arrears in order to avoid commencement and/or continuation of legal proceedings in the nature of foreclosure and/or other remedies available to Wilshire as a result of Borrowers' default under the Loan. NOW THEREFORE, in consideration of the foregoing recitals, the mutual covenants of the parties set forth hereunder, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. INTITIAL PAYMENT: On or before August 29, 2006, Borrowers shall pay the sum of $20,000.00 by certified check, attorneys' check or money order made payable to Wilshire Credit Corporation, with loan number 243812 noted thereon, to counsel for Wilshire at Kerns, Pearlstine, Onorato & Hladik, LLP, 425 W. Main Street, Lansdale, PA 19446, attention Stephen M. Hladik, Esquire. 2. MONTHLY PAYMENTS: Beginning with the monthly payment due September 23, 2006, and continuing through November 23, 2006, on the Twenty-third day of each month, Borrowers shall pay to Wilshire, by certified check or money order, the sum of Four Thousand Five Hundred Fifty Dollars ($4,550.00). These payments shall be forwarded directly to Wilshire at P.O. Box 7195, Pasadena, CA 91109-7195. From each payment, the sum of $754.88 shall be applied against the Arrears. Upon successful completion of the above payments (and all monthly mortgage payments), Borrowers shall: (a) Contact Wilshire Credit Corporation to receive a final statement as to any outstanding arrears; (b) Borrowers shall pay to Wilshire Credit Corporation all outstanding arrears to Wilshire ten (10) days of receipt of said statement from Wilshire. As the amount being applied to the Arrears through this Agreement is insufficient to reinstate the Mortgage, it is the responsibility of Borrowers to contact Wilshire prior to expiration of this Agreement to obtain the statement of outstanding arrears or foreclosure proceedings may commence or continue without further notice upon receipt of the last payment on this plan. 3. HAZARD INSURANCE: Borrowers agrees to keep the Property insured at all times against loss due to fire or other natural hazards in accordance with the terms of the Mortgage. Borrowers understand that they are responsible for renewing the hazard insurance policy prior to expiration. 4. FEES/COSTS: Borrowers acknowledges responsibility for payment of all costs and fees currently incurred or hereafter incurred by Wilshire, including, but not limited to, foreclosure legal fees/costs, bankruptcy fees/costs, property preservation/inspections, negative escrow balances/initial escrow balance requirements, and NSF fees, in the course of preserving and protecting its rights hereunder pursuant to the Loan. 5. PREPAYMENT: If all of the Arrears (in addition to the $22,264.64 which will have been paid if Borrowers makes all payments pursuant to section 2 of this Agreement) are paid by Borrowers prior to November 23, 2006, this Agreement shall terminate and the monthly payments required by the original Note and Mortgage shall be. reinstated. The amount of the original escrow payment, however, may be adjusted to reflect any increases in property taxes assessed against the Property prior thereto. 6. TERMINATION CONDITIONS: Wilshire may terminate this Agreement if: (a) Borrowers permanently leave or vacate the Property. (b) Borrowers sell or convey any interest in the Property, Note or Mortgage. (c) The facts or circumstances that caused Wilshire to enter into this Agreement substantially change. (d) Borrowers fail to comply with any terms of this Agreement or the original Note and Mortgage. 7. REMEDIES: If Wilshire terminates this Agreement for any of the above conditions, Borrowers agree that Wilshire may, in its sole discretion: (a) Enter into a new agreement to satisfy the Arrears; or (b) Return to the original terms of the Note or Mortgage; or (c) Continue or commence any remedy available to it under the Note or Mortgage, including, but not limited, to mortgage foreclosure. 8. WAIVER OF DEFENSES: In consideration of Wilshire's agreement to enter into this Forbearance Agreement, Borrowers expressly waive any and all defenses, if any, they may have had with regard to the default under the Loan. If by virtue of a termination of this Agreement, Wilshire elects to commence or continue a foreclosure action, Borrowers acknowledge that they have voluntarily and knowingly relinquished any and all defenses with regard to the default under the Loan, and they will not and acknowledge that they cannot raise same in the foreclosure proceeding. Borrowers jointly and severally release, discharge, and covenant not to sue "Wilshire," any owners of the Loan, and any of their predecessors, successors, and parent corporations from any and all claims, causes of action, defenses, whether known or unknown, which Borrowers had, now have or may hereinafter acquire, which relate to, or are in any way, connected with the Loan or the acts or omissions of any related parties. Notwithstanding any other paragraph of this Agreement, this provision shall remain in full force and effect upon execution by the Borrowers, and shall survive this Agreement. Borrowers also agree, as a condition to Wilshire's acceptance of this Agreement, to execute Acceptances of Service of the previously filed action in mortgage foreclosure. 9. NOTICE: All Borrowers acknowledge receiving any and all applicable notices of intent to foreclose, including, but not limited to an Act 6, Act 91 and/or Act 160 notices. Borrowers acknowledges that, if by virtue of a termination of this Agreement, Wilshire elects to continue or commence an action in mortgage foreclosure, that no further notice (including any Act 91, 6, or 160 notice) to Borrowers shall be necessary to do so. 10. ORIGINAL NOTE AND MORTGAGE: Borrowers understand that all rights and obligations of the original note and Mortgage, except as modified herein, remain in full force and effect, and that when this Agreement expires, the monthly payments originally due under the note and Mortgage shall be paid by Borrowers in accordance with their terms, unless Wilshire agrees, in its sole discretion, to renew, amend, or extend this Agreement. 11. ESCROW: If no escrow for payments of taxes and insurance has been established with Wilshire, Borrowers agree to ensure that taxes on the Property securing the Loan are kept current and that the Property is properly insured. Wilshire at its sole discretion may request that Borrowers provide proof of tax status and property insurance coverage. I have read and understand the terms and conditions of this Agreement. I hereby agree to the terms and conditions set forth above. I acknowledge a receipt of a copy of this Agreement. Todd Perry Carrie Perry Wilshire Credit Corp By: Name: Title: Date: Date: Date: (File #16-793) EXHIBIT ?C Mr. Hladik and to whom it may concern at Wilshire, Sorry for not sending a certified check. We have had more time to review your forbearance agreement and find it filled with "legalese". In reviewing our situation more thoroughly, Carrie and I have decided not to continue with Wilshire as our mortgage company for many reasons. Please do not forward the previous agreement to Wilshire for their signature. We would like to create a second mortgage with her parents to pay down some of the arnearages and look to refinance our mortgage with Wilshire within 3 months. We will keep you apprised of our efforts. Worst case scenario, my brother has agreed to pay off Wilshire if we can't obtain a new mortgage on our own by the end of the year. Please accept this certified check from Carrie's parents in the amount of $20,000 as agreeing to these new terns. If you need more to pay down the arrearages, please let me know. Otherwise, I will assume the foreclosure proceedings to be halted upon Wilshire cashing this check. Sincerely, A, Todd Perry EXHIBIT `D' t r i l l ! G O' J J! O N• 1 I W WilsN FACSIMILE To Loan: 243812 PERRY, TODD/ Fax CARRIE 14523 SW Mllikan Way Phone Suite 200 Mobil Beaverton, OR From LYNN EVANS Fax 97 LOSS MITIGATION REPRESENTATIVE Phone Date October 26, 2006 telephone 888-917-1050 Ext 7126 facsimile 503.952.7476 www.wfsg.com 503-525-7287 1 I 888-917-1050 X 3107; Pages (including cover) Re Please complete attached financial statement and return with: OVERNIGHT MAIL ADDRESS 14523 SW MILLIKAN WAY SUITE 200 BEAVERTON, OR 97005 - Financial statement - hardship letter - last 2 pay stubs - last 2 bank statements - last 2 years tax returns Q up -? This facsimile t arverrission is intended only for the use of the individual or entity to which it is addressed, and may contain certain confidential Infametion belonging to the sender. Any disclosure, copying, distrib aw. or the taking of any action ' reliance on the contents of this infannatlon is strictly prohiMacl. If you have recelved this tranemlagsion in error, please notify Ls Immediately by telephone to arrange for the return of the documents. EXHIBIT 4El State Fenno fTA11 /A{M Providing Instaance and Financial Services Home Office, Gioomington, Illinois 61710 .N{YI.NGf? Klaudia Chilcoat Agent 301 S. 32nd Street, Camp Hill, PA 17011 Nancy R. Nelson 717 761 3589 Fax 717 731 8424 Insurance Account Representative klaudia.chilcoat.j8od0statefarm.com 24 Hour Good Neighbor Service® TODD PERRY 5008 GREENWOOD CIR ENOLA, PA 17025 Dear Valued Customer: Wilshire Reference: 6398566 November 16, 2006 Loan Number: 00243812 5008 GREENWOOD CIR; ENOLA We previously notified you that we do not have any evidence of an in-force hazard/fire insurance policy for the above-referenced property. If your hazard/fire insurance is in force, please contact your agent or company immediately and have them send us a copy of your current insurance policy. The policy must confirm that there has been no lapse in coverage, and must reflect you as the insured and list "Wilshire Credit Corporation, Its Successors and/or Assigns," as the mortgagee. Please send proof of insurance to the address or fax listed below: Wilshire Credit Corpporation Attention: Insurance De artment P.O. Box 80959 Portland, OR 97280 Fax 1.503.726.1840 Please note this address is for Insurance purposes only (please do not send any payments to this address). If we do not receive a replacement or renewal policy within the next 14 days, we may order hazardlfire coverage on your behalf to protect the security of our loan. The insurance may provide less coverage than your old policy and may be more costly. It does not cover, among other things, the replacement cost of your structure; worker's compensation; injuries to person(s) or property for which you may be liable; or damages due to flood or earthquake. Coverage may be place effective the date your previous policy canceled or expired. The premium plus any applicable fees will be your expense and can be paid with your next loan payment or in conjunction with your escrow impound account. If this advance creates a deficiency in your existing escrow account, interest can be charged at your note rate. Please remind your insurance agent or company that, in the future, we must receive a copy of your hazard/fire insurance policy each renewal. All insurance policies must reflect you as the insured and list "Wilshire Credit Corporation, Its Successors and/or Assigns" as the mortgagee. If you have any questions regarding this matter, please do not hesitate to contact our Insurance Department at 1.866-834.6413, or visit us online at www.pdx.myloaninsurance.com. Thank you for your prompt attention to this matter. Sincerely, Wilshire Credit Corporation 81V NPR FIN YOU SHOULD CONSIDER THIS LETTER AS COMING FROM A DEBT COLLECTOR AS WE SOMETIMES ACT AS A DEBT COLLECTOR. ANY INFORMATION PROVIDED BY YOU WILL BE USED TO COLLECT THIS DEBT. HOWEVER, IF YOU ARE IN BANKRUPTCY OR RECEIVED A BANKRUPTCY DISCHARGE OF THIS DEBT, THIS LETTER IS NOT AN ATTEMPT TO COLLECT THE DEBT, BUT NOTICE OF POSSIBLE ENFORCEMENT OF OUR LIEN AGAINST THE COLLATERAL PROPERTY. COLORADO: FOR INFORMATION ABOUT THE COLORADO FAIR DEBT COLLECTION PRACTICES ACT, SEE htt :Ilwww.a o.state.co.uslcadclcadcmain.cfm. NEW YORK CITY: License 1032551. NORTH CAROLINA: Permit 3840. TENNESSEE: This collection agency is licensed by the Collection ervice oar o t Delp artmer?t of Commerce and Insurance. Wilshire Credit Corporation is licensed to do business at 14513 S.W. Milliken Way, Beaverton, OR. Wilshire's office hours are Monday - Friday 6:00 am to 5:00 pm Pacific time, holidays excluded. STATE FARM FIRE AND CASUALTY COMPANY HOMEOWNERS FORM RATE QUOTE November 16, 2006 Prepared for: TODD & CARRIE PERRY 5008 GREENWOOD CIR ENOLA, PA 17025 Property desc: Year built: 2001 Zone: 38 IV%: 100 Source: Vendor Tool Policy Coverage Prepared by: (NRN) CHILCOAT, KLAUDIA A STATE FARM INSURANCE 301 SOUTH 32ND STREET CAMP HILL, PA 17011-5104 (717)761-3589 Subzone: 09 Rates effective: Jul 01, 2006 Construction: Frame Date of Estmt: Nov 16, 2006 Estmt#: J4E8-P3AA-7 Dwellingq Option ID - Increased Dwelling Loss Settlement Provision Similar construction) Common construction) Dwelling extension Personal property (Limited replacement cost) Loss of use (actual loss sustained) Personal liability (each occurrence) Medical payments to others (each person) Damage to property of others (each occurrence Credit card/bank card and forgery Deductibles Policy deductible Other deductibles may apply Claim Free Discount Utilities rating plan adjustment Building Ordinance or Law Jewelry and furs Silverware and goldware Firearms Home computer Business property Amount Premium 430,000 1,177.00 86,000 Included Excluded 43,000 322,500 Included 500000 2 00 9. ded Inclu 1,000 1,000 399.00 Included 59.OOCR 15% 168.000R 2500/5000 15.00 2,500 2,500 5,000 1,000 Total annual premium--------------------------------------$ 11398.00 Monthly premium (service charge not included) ------------- $ 116.50 This example of available coverages and limits is not a contract, binder, or recommendation of coverage. This Quote assumes you insure for 100% of the estimated replacement cost of your home. Higher limits are available at a higher premium. Coverage is available in a lesser amount, subject to restrictions and limitations. If information used for rating changes or different rates are effective at the time of policy issuance, this rate quote may be revised. All coverages are subject to the terms and conditions contained in the policy and endorsements. You must choose your limits and coverages. EXHIBITT' y 100 State Farm Place Ballston Spa, NY 12020-8000 Named Insured P-13-6361-F381 F H PERRY, TODD 8 CARRIE 5008 GREENWOOD CIR ENOLA PA 17025-1289 Iu?IIIu?IIInu?IJJJuuIInI?IInIJJulIuJul?luJl LItGLAKAI IVN5 FAUl= Policy Number 38-OA-6176 Policy Period Effective Dat 12 Months NOV 16 2006 The policy period begins and en standard ime at the residence F Loan if 243812 Mortgagee WILSHIRE CREDIT CORP ITS SUCCESSORS AND/OR ASS PO BOX 80959 PORTLAND OR 97280-0959 HOMEOWNERS POLICY Automatic Renewal - If the policy period is shown as 12 months, this policy will be renewed automat premiums, rules and forms in effect for each succeeding policy period. If this policy is terminated, we wi Mortgagee/Lienholderwritten notice in compliance with the policy provisions or as required by law. m of Residence Premises as Insured's Address Coverages & Property Limits of Liability SECTION I A Dwelling 430,000 Dwelling Extension up to 43 , 000 B C Personal Property Loss of Use 322 500 Actual Loss Sustained SECTION II L Personal Liability $ 500,000 Each Occurrence P rope y amage to of Others $ 500 M Medical Payments to Others (Each Person) $ 5,000 Loss Settlement Provision (See Policy) l Al Replacement Cost - Simi ar Construction 61 Limited Replacement Cost - Coverage B Forms, Options, & Endorsements Homeowners Policy Amendatory Endorsement Fungus (Including Mold) Excl Telecommuter Coverage Motor Vehicle Endorsement Policy Endorsement Jewelry and Furs $2,500 Each Article/$5,000 Agggre ate Increase Dwlg Up fo $g 86,000 FP-7955 FE-7269 FE-5398 FE-5831 FE-5452 FE-5320 Option JF Option ID Inflation Coverage Index: 209.7 Deductibles - Section I All Losses $ In case of loss under this policy, the dedu. per occurrence and will be deducted from Poss. Other deductibles may apply - refer I Policy Premium Discounts Applied: Utility Rating Cr Claim Free Other limits and exclusions may apply - refer to your policy Your policy consists of this page, any endorsements and the policy form. Please keep these together. FP-7001.60 Continued on Reverse KLAUDIA CHILCOAT 1286 1 51 1 717.791.4C;fto EXHIBIT `G' 'v a 0 a m m ccr? ?a.Q 3 y. n 3 . • LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-7215 Civil Term CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant, hereby certify a true and correct copy of the foregoing ANSWER TO MOTION FOR SUMMARY JUDGMENT will be served by electronic means and/or first-class U.S. mail on the following parties indicated: Stephen M. Hladik, Esquire Kerns, Pearlsteine, Onorato, Fath, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 Date: April 17, 2007 CUNNINGHAM & CHERNICOFF, P.C. 7 ieanne Ametrano U 2 20 North Second Street arrisburg, PA 17110 Telephone: (717) 238-6570 F:\Home\BJW\DOCS\Todd. PenyWnswer2Motion.wpd CD r Y J a a e an ational Association as COURT OF COMMON PLEAS OF Trustee for Structured Asset Investment CUMBERLAND COUNTY, PA ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & HLADIK, LLP 425 West Main Street, P.O. Box 29, Lansdale, PA 19446-0029 (215 855-9521 LSII B kN ' STEPHEN M. HLADIK, ESQUIRE ATTORNEY FOR PLAINTIFF Loan Trust Series 2003-BC9, c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200, Beaverton, OR 97005-, PLAINTIFF, NO: V. Todd A. Perry Carrie Perry 5008 Greenwood Circle, Enola, PA 17025, DEFENDANT(S). 06-7215 - Civil Term REPLY OF PLAINTIFF TO DEFENDANTS ANSWER TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff, LaSalle Bank National Association, as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 ("Plaintiff'), by and through its undersigned counsel hereby replies to the Answer to Defendants to Plaintiffs Motion for Summary Judgment. BACKGROUND Plaintiff is obligated to submit this reply to correct several factual inaccuracies alleged by Defendants in their response to the Motion for Summary Judgment. By way of background, in order to assist the Defendants in the underlying foreclosure action, Plaintiff was willing to enter into a Forbearance Agreement with the Defendants. A Forbearance Agreement was prepared and forwarded to the Defendants on or about August 17, 2006 via Federal Express. The Defendants signed that Agreement and returned it with a personal check in the amount of $20,000.00. Due to the funds being via personal check, the funds were returned to Defendants with the request that they be replaced with certified funds. Defendants did tender a certified check, which was received on or about August 31, 2006 in counsel for Plaintiff's office. A true and correct copy of that cashier's check is attached and marked as Exhibit "A." The cashier's check contains hand written notice by the Defendants that the $20,000.00 is being forwarded for purposes of a Forbearance Agreement. The signed executed Forbearance Agreement by Defendants is also attached hereto and marked Exhibit "B." Plaintiff's counsel reviewed his foreclosure file, and counsel cannot locate the letter purportedly sent by Todd Perry with the forbearance funds. Even if Todd Perry's letter is given any weight, it cannot unilaterally alter the terms of his mortgage agreement that requires monthly payments. As a result of receiving the executed Forbearance Agreement and the $20,000.00 certified funds with the notation of "Forbearance Agreement," the Sheriff's sale scheduled for September was canceled. In accordance with Plaintiff's right, Plaintiff continued that Sheriffs sale to December of 2006. In the event that Defendants remained current under their obligations under the Forbearance Agreement the December Sheriff's Sale would have been stayed. However, by virtue of their own averments, Defendants acknowledge that they did not tender any further payments to Plaintiff as was required under the Forbearance Agreement. Accordingly, due to the default under the Forbearance Agreement the sale proceeded as scheduled in December. The continuance of the Sheriffs sale in September to December was publicly announced at the September Sheriffs sale by the Cumberland County Sheriff's Office. As such, pursuant to the rules of Civil Procedures there was no need for any further notice to be served upon the Defendants and the sale proceeded in a proper manner. Nevertheless, since the Sheriff's Deed has already been recorded, Defendants no longer have any legal means to challenge anything related to the underlying foreclosure sale. Their averments as to gross inadequacy of price have no relevance in this ejectment proceeding. Further this is no fraud in that the Forbearance Agreement as the agreement very conspicuously disclosed to the Defendants that if they did not comply with the terms of the Agreement, the foreclosure action would be continued and that no further notice would be necessary to the Defendants. As such for the foregoing reasons, the Motion for Summary Judgment should be granted. Respectfully submitted, Stephen M. Hladik, Esquire Attorney for Plaintiff Dated: ?g?? OW d% STEPHEN M. HLADIK, ESQUIRE ATTORNEY FOR PLAINTIFF ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & HLADIK, LLP 425 West Main Street, P.O. Box 29, Lansdale, PA 19446-0029 (215) 855-9521 LaSalle Bank National Association as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9, c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200, Beaverton, OR 97005-, PLAINTIFF, COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO: 06-7215 -Civil Term V. Todd A. Perry Carrie Perry 5008 Greenwood Circle, Enola, PA 17025, DEFENDANT(S). CERTIFICATE OF SERVICE I, Stephen M. Hladik, Esquire, hereby certify that I served a true and correct copy of the foregoing pleading, on the persons below, via first class mail, on May 9, 2007: Todd A. Perry and Bruce J. Warshawsky, Esquire Carrie Perry PO Box 60457 5008 Greenwood Circle Harrisburg, PA 17106-0457 Enola, PA 17025 Date: Stephen ladik, Esquire Attorney for Plaintiff C? c.:' _..? w ` ?% -?*? , ? r,, f_ ? ?_ _ ? _;, ., ?y z i -. ,..; , . ,.t_ w ;? ?- --.. - { =-<: CASE NO: 2006-07215 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LASALLE BANK NATIONAL ASSOC VS PERRY TODD A ET AL SHAWN HARRISON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT was served upon PERRY TODD A the DEFENDANT , at 2020:00 HOURS, on the 28th day of December-, 2006 at 5008 GREENWOOD CIRCLE ENOLA, PA 17025 TODD PERRY by handing to a true and attested copy of COMPLAINT - EJECTMENT together with and at the same time directing His attention to the contents thereof L?R Sheriff's Costs: So Answers: Docketing 18.00 Service 13.20 Affidavit .00 Surcharge 10.00 R. T omas Kline .. .00 .? 41.20 01/02/2007 KERNS PEARLSTINE ON TO HLADI Sworn and Subscibed to By: ` before me this day eput Sheriff of A.D. SHERIFF'S RETURN - REGULAR CASE N0: 2006-07215 P :...,. 77. COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LASALLE BANK NATIONAL ASSOC VS PERRY TODD A ET AL SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT was served upon PERRY CARRIE the DEFENDANT , at 2020:00 HOURS, on the 28th day of December-, 2006 at 5008 GREENWOOD CIRCLE ENOLA, PA 17025 by handing to TODD PERRY, HUSBAND a true and attested copy of COMPLAINT - EJECTMENT together with and at the same time directing His attention to the contents thereof. -- ?I Sheriff's Costs: So Answers: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 fil4+b1 [?,.. 16.00 Sworn and Subscibed to before me this day of , R. Thomas Kline 01/02/2007 KERNS PEARLST N JONRATO HLADI By. Deputy Sheriff A. D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-07215 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LASALLE BANK NATIONAL ASSOC VS PERRY TODD A ET AL SHAWN HARRISON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT was served upon MAILEY CARRIE A the DEFENDANT , at 2020:00 HOURS, on the 28th day of December-, 2006 at 5008 GREENWOOD CIRCLE ENOLA, PA 17025 by handing to TODD PERRY, HUSBAND OF CARRIE MAILEY PERRY a true and attested copy of COMPLAINT - EJECTMENT together with and at the same time directing His attention to the contents thereof Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscibed to before me this day of , So Answers: R. Thomas Kline 01/02/2007 KERNS PEARLSTI. ONO TO HLADI By: eputy Sheriff A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-07215 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LASALLE BANK NATIONAL ASSOC VS PERRY TODD A ET AL SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT was served upon NICKEY BILL J the DEFENDANT at 2020:00 HOURS, on the 28th day of December-, 2006 at 5008 GREENWOOD CIRCLE ENOLA, PA 17025 by handing to TODD PERRY, FATHER IN LAW a true and attested copy of COMPLAINT - EJECTMENT together with and at the same time directing His attention to the contents thereof. ••• Sheriff's Costs: So Answers: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 R. Thomas Kline , .00 ? 16.00 01/02/2007 KERNS PEARLSTI ON RATO HLAKI Sworn and Subscibed to By: vx_?? before me this day ep y Sheriff of A.D. SHERIFF'S RETURN - REGULAR CASE NO: 2006-07215 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LASALLE BANK NATIONAL ASSOC VS PERRY TODD A ET AL SHAWN HARRISON , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT NICKEY CAREL A DEFENDANT was served upon the , at 2020:00 HOURS, on the 28th day of December , 2006 at 5008 GREENWOOD CIRCLE ENOLA, PA 17025 TODD PERRY, MOTHER IN LAW by handing to a true and attested copy of COMPLAINT - EJECTMENT together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscibed to before me this day So Answers R. Thomas Kline 01/02/2007 KERNS PEARLSTINE NO TO HLADI By. Deputy Sheriff of A. D. SHERIFF'S RETURN - NOT FOUND CASE NO: 2006-07215 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND LASALLE BANK NATIONAL ASSOC VS PERRY TODD A ET AL R. Thomas Kline Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT OCCUPANT but was unable to locate Him in his bailiwick. COMPLAINT - EJECTMENT , He therefore returns the the within named DEFENDANT 5008 GREENWOOD CIRCLE OCCUPANT NOT FOUND , as to ENOLA, PA 17025 THERE WERE NO OTHER OCCUPANTS. Sheriff's Costs: Docketing 6.00 Service .00 Not Found 5.00 Surcharge 10.00 00 So answers- ` R. Thomas Kline Sheriff of Cumberland County KERNS PEARLSTINE ONORATO HLADI 01/02/2007 Sworn and Subscribed to before me this day of A.D. STEPHEN M. HLADIK, ESQUIRE ATTORNEY I.D. NO. 66287 KERNS, PEARLSTINE, ONORATO & HLADIK 425 West Main Street, P.O. Box 29, Lansdale, PA 19446-0029 (215) 855-9521 ATTORNEY FOR PLAINTIFF LLP LaSalle Bank National Association as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9, c/o WILSHIRE CREDIT CORPORATION, 14523 SW Millikan Way, Suite 200, Beaverton, OR 97005-, PLAINTIFF, v. Todd A. Perry Carrie Perry 5008 Greenwood Circle, Enola, PA 17025, DEFENDANT(S). COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO: 06-7215 -Civil Term PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE CLERK: 1. Kindly, set argument for Motion For Summary Judgment. 2. Identify counsel who will argue cases: (a) Gregory W. Fox, Esquire - Counsel for Plaintiff KERNS, PEARLSTINE, ONORATO & HLADIK, LLP 425 W. Main Street Lansdale, PA 19446 (b) Bruce J. Warshawsky, Esquire - Counsel for Defendants P.O. Box 60457 Harrisburg, PA 17106-0457 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: \AIVl?1 02.31 a Date: 10/24/07 Gregory ?squire -n v 3 29 Lasalle Bank N.A. as Trustee for Structured Asset Investment Loan Trust Series 2003-BC-9 V. Todd A. Perry and Carrie Perry IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2006-7215 CIVIL TERM ORDER OF COURT AND NOW, November 21, 2007, by agreement of counsel, the above-captioned matter is continued from the November 21, 2007 Argument Court list. Counsel is directed to relist the case when ready. , egory W. Fox, Esquire For the Plaintiff Xruce J. Warshawsky, Esquire For the Defendant Court Administrator ( ao' ) By the C , Edgar B. Bayley, kam l-' O :1 d LO AON tQ Z Ff Zl4i '"'Rt 1( 7 r r'v LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Respondent/Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Movants/Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-7215 Civil Term DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND NOW, comes the Defendants, Todd A. Perry, Carrie Perry, Carrie A. Mailey, Bill J. Nickey, CArel A. Nickey and any and all known occupants of 5008 Greenwood Circle, Enola, Pennsylvania, by and through their counsel, Cunningham & Chernicoff, P.C., and files their Motion for Judgment on the Pleadings and in support thereof avers as follows: 1. PARTIES 1. Movant/Defendants, Todd A. Perry, Carrie Perry, Carrie A. Mailey, Bill J. Nickey, Carel A. Nickey and any and all known occupants of 5008 Greenwood Circle, Enola, Pennsylvania ("Movants") are adult individual who currently resides at 5008 Greenwood Circle, Enola, Pennsylvania. 2. Respondent/Plaintiff, LaSalle Bank National Assoc., as Trustee for Structured Asset Investment Loan Trust Series 2003-BC c/o Wilshire Credit Corporation ("Respondent") is a Corporation currently located in Pennsylvania. II. FACTUAL BACKGROUND 3. The averments of Paragraphs 1 through 2 are incorporated herein by reference as if fully set forth. 4. Movants were the owners of certain premises located at 5008 Greenwood Circle, Enola, Pennsylvania 17025 (the "Premises"). 5. Respondent obtained a Judgment in Mortgage Foreclosure, docketed to Cumberland County 06-1093 with respect to the Premises. 6. Respondent purchased the Premises at a Sheriff Sale which occurred on December 6, 2006. 7. Respondent, as Plaintiff, filed this action in ejectment against Movants, as Defendants (the "Ejectment Complaint") III. PROCEDURAL HISTORY 8. The averments of Paragraphs 1 through 7 are incorporated herein by reference as if fully set forth. 9. On December 15, 2006, Respondent filed the Ejectment Complaint against Movants. 10. The Ejectment Complaint recites the following in Paragraph 7, "the Deed in favor of Plaintiff (Respondent), has not been recorded as settlement has not been made with the Sheriff and/or the Sheriff has not yet returned the Deed to Plaintiff for recording." 11. On January 29, 2007, Movants (as Defendants) filed an Answer to the Ejectment Complaint and raised New Matter ("New Matter"). 12. On February 2, 2007, Plaintiff filed a Reply to Defendant's New Matter ("Reply"). 13. In the Reply, in Paragraph 17, Respondent/Plaintiff pled, "the Deed vesting ownership of the property (the Premises) in Plaintiff was recorded on January 4, 2007 in the Cumberland County Recorder of Deeds at Book 278, Page 1273, thus evidencing conclusively Plaintiffs right to possession of the Premises." IV. STANDARD FOR JUDGMENT ON THE PLEADINGS 14. The averments of Paragraphs 1 through 13 are incorporated herein by reference as if fully set forth. 15. According to Pa. R.C.P. § 1034(b), after the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for Judgment on the pleadings. 16. The relevant pleadings are closed. 17. Based upon the Pleadings, it is proper for this Court to enter Judgment in favor of Movants/Defendants. 18. Plaintiff/Respondent filed a Motion for Summary Judgment on or about March 19, 2007 (the "Summary Judgment Motion"), to which Defendants/Movants filed an Answer on April 18, 2007 and to which Plaintiff filed a Reply to Defendants'/Movants' Answer the on May 19, 2007. 19. The Summary Judgment Motion was listed for argument by Plaintiff/Respondent on October 24, 2007. 20. After the Summary Judgment was listed for argument, and in preparation for argument which was scheduled for November 21, 2007, counsel for the Defendants discovered the case of Wells Fargo Bank, N.A. v. Maggie S. Long a/k/a Maggie Sylma.n-Hubbard et al, _ A.2d _. 2007 WL 2380995 (Pa. Super), 2007 PA Super. 254 (decided by the Superior Court on August 22, 2007), a copy of which is attached hereto as Exhibit "A" (the "Wells Fargo Case"). 21. On November 21, 2007, an Order of Court was issued continuing the Summary Judgment Motion from the November 21, 2007 Argument Court List, the Court directing counsel to relist the case when ready. 22. No trial has been set in this case as the Summary Judgment Motion is still pending. V. RESPONDENTS ARE ENTITLED TO JUDGMENT THE PLEADINGS. 23. The averments of Paragraphs 1 through 22 are incorporated herein by reference as if fully set forth. 24. The Wells Fargo Case is on "all fours" with the case sub judice in that the holding of the Wells Fargo Case is that an action for ejectment must be dismissed when it is filed prior to the recording of a Sheriffs Deed and prior to any point in time when a Plaintiff in an ejectment action has any present right to immediate possession to real property, as in this case. WHEREFORE, Movants/Defendants, Todd A. Perry, Carrie Perry, Carrie A. Mailey, Bill J. Nickey, Carel A. Nickey, respectfully requests that their Motion for Judgment on the Pleadings be granted, that all claims against Movants/Defendants, Todd A. Perry, Carrie Perry, Carrie A. Mailey, Bill J. Nickey, Carel A. Nickey, be dismissed with prejudice, and that this Honorable Court grant Movants/Defendants, Todd A. Perry, Carrie Perry, Carrie A. Mailey, Bill J. Nickey, Carel A. Nickey, such further relief as is just and proper. Respectfully submitted, CUNNINGHAM & CHERNICOFF, P.C. Date: February , 2008 By: Bruce J. WarshawsK, Esquire Attorney I.D. #58799 2320 North Second Street Harrisburg, PA 17110 (717) 238-6570 Counsel for Movants/Defendants F:\Home\BJ W\DOCS\Todd. Perry\Motion.wpd CERTIFICATE OF SERVICE I, Julieanne Ametrano, Legal Assistant, with the law firm of Cunningham & Chernicoff, hereby certify that a true and correct copy of DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS was served by first-class mail, postage prepaid, on the following: Stephen M. Hladik, Esquire Kerns, Pearlstine, Onorato & Fath, LLP 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 CUNNINGHAM & CHERNICOFF, P.C. Date: February 1, 2008 Julieanne Ametrano LASALLE BANK NATIONAL ASSOC., as Trustee for STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2003-13C9 c/o WILSHIRE CREDIT CORPORATION, Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 06-7215 Civil Term ORDER AND NOW, this day of , 2008, upon consideration of Defendants' Motion for Judgment on the Pleadings and any response thereto, it is hereby ORDERED and DECREED, that: 1. Defendants' Motion for Judgment on the Pleadings is granted; and 2. Plaintiffs Complaint is dismissed with prejudice. J. EXHIBIT `A' --- A.2d ---- Page 1 --- A.2d ----, 2007 WL 2380992 (Pa.Super.), 2007 PA Super 254 (Cite as: --- A.2d ----) H Wells Fargo Bank, N.A. v. Long Pa. Super.,2007. Page 2 of 7 occurred two months after the commencement of the lawsuit, and thus court lacked jurisdiction to consider the lawsuit. Superior Court of Pennsylvania. WELLS FARGO BANK, N.A. V. Maggie S. LONG, a/k/a Maggie Sylman Hubbard, Terrence L. Hubbard, and Occupants of 2566 Stroschein Road, Monroeville, PA. 15146 Appeal of. Maggie S. Long. No. 1813 WDA 2006. Filed Aug. 22, 2007. Background: Assignee of successful bidder at foreclosure sale brought ejectment action against mortgagor after mortgagor failed to vacate the premises. The Court of Common Pleas, Allegheny County, No. GD05-030290, granted assignee's motion for summary judgment, and mortgagor appealed. Holding: The Superior Court, Popovich, J., held that action was premature, as assignee did not gain a right to possession until after lawsuit was filed when sheriff acknowledged and recorded deed. Reversed. [1] Ejectment 142 X39 142Ejectment 14211 Jurisdiction, Parties, Process, and Incidental Proceedings 14209 k. Time to Sue and Laches. Most Cited Cases Action for ejectment brought by assignee of successful bidder at foreclosure sale was premature, as its right to possession did not attach until sheriff acknowledged and recorded the deed, which [2] Ejectment 142 0=117 142Ejectment 1421 Right of Action and Defenses 142kl7 k. Right of Plaintiff to Possession. Most Cited Cases Ejectment 142 X19 142Ejectment 1421 Right of Action and Defenses 142k19 k. Possession of Defendant. Most Cited Cases Ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it, against a defendant who has actual possession. [3] Ejectment 142 C=1 142Ejectment 1421 Right of Action and Defenses 142kl k. Nature and Scope of Remedy in General. Most Cited Cases The purpose of an ejectment action as opposed to quiet title is not to determine the relative and respective rights of all potential title holders, but rather the immediate rights between plaintiff and defendant involved in that particular litigation. [4] Ejectment 142 X36 142Ejectment 14211 Jurisdiction, Parties, Process, and Incidental Proceedings 14206 k. Jurisdiction of Subject-Matter. Most Cited Cases A determination of possession is a jurisdictional prerequisite to the trial court's authority to entertain the merits of a complaint in ejectment. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&prft=HTMLE&fn= top&mt=Pennsylvania&... 11/14/2007 --- A.2d ---- Page 2 --- A.2d ----, 2007 WL 2380992 (Pa.Super.), 2007 PA Super 254 (Cite as: --- A.2d ---) 151 Ejectment 142 E?1 142Ejectment 1421 Right of Action and Defenses 142k1 k. Nature and Scope of Remedy in General. Most Cited Cases Ejectment 142 X17 142Ejectment 1421 Right of Action and Defenses 142k17 k. Right of Plaintiff to Possession. Most Cited Cases Ejectment is a possessory action only, and can succeed only if the plaintiff is out of possession, and if he has a present right to immediate possession. 161 Ejectment 142 X17 142Ejectment 1421 Right of Action and Defenses 142k17 k. Right of Plaintiff to Possession. Most Cited Cases An action in ejectment cannot be maintained by the plaintiff unless he is out of possession, and he has a right to the possession of the property at the time of the commencement of the action. Appeal from the Order September 12, 2006, In the Court of Common Pleas of Allegheny County, Civil Division at No. GD05-030290. Page 3 of 7 that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Furthermore, this Court must view the record in the light most favorable to the non-moving party. Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 376 A.2d 247, 249-50 (Pa.Super.1977); Bowman v. Sears, Roebuck & Company, 245 Pa.Super. 530, 369 A.2d 754, 756 (Pa. Super. 1976); Husak v. Berkel, 234 Pa.Super. 452, 341 A.2d 174, 177 (Pa. Super. 1975). Summary judgment is to be entered only in the clearest of cases where there is not the slightest doubt as to the absence of a triable issue of fact.Granthum v Textile Machine Works, 230 Pa.Super. 199; 326 A.2d 449, 451 (Pa.Super.1974). ¶ 3 The undisputed facts establish the following. Appellant was living in mortgaged property situated at 2566 Stroschein Road, Monroeville, Allegheny County, Pennsylvania. When Appellant fell into default, the mortgagee U.S. Bank National Association ("U.S.Bank") instituted a foreclosure action, purchased the property at sheriffs sale conducted on November 7, 2005, and assigned the successful bid to Appellee. With Appellant's failure to vacate the premises, Appellee filed a complaint in ejectment on November 17, 2005, claiming title by: 1) virtue of the sheriffs sale; and 2) being the real and current owner of the foreclosed premises by virtue of the Allegheny County sheriff sdeed poll, which was to be recorded as soon as possible-the sheriffsdeed was recorded on January 20, 2006. BEFORE: McCAFFERY, DANIELS and POPOVICH, JJ. OPINION BY POPOVICH, J.: *l ¶ 1 Appellant Maggie S. Long FNI appeals the order entering summary judgment in favor of Appellee Wells Fargo Bank, N.A. We reverse. ¶ 2 In reviewing the grant of a motion for summary judgment, we must determine whether there is any material fact in dispute. Summary judgment may be entered if the pleadings, deposition, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The moving party bears the burden of demonstrating ¶ 4 After considering the multiple pleadings and briefs filed by the parties, the trial court issued an order dated September 11, 2006, granting Appellee's motion for summary judgment, along with a writ of possession to be effectuated within five days thereof and a subsequent lock-out to be scheduled for no more than ten days after service of the writ. Appellant filed a timely appeal FN2 raising several issues, the first of which questions: " Whether [Appellee] lacked the right to possession of the pertinent residential property at the commencement of this ejectment action, thereby depriving the [trial] court of jurisdiction to entertain the action. "Appellant's brief, at 4. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&prft=HTMLE&fn= top&mt=Pennsylvania&... 11/14/2007 Page 4 of 7 --- A.2d ---- --- A.2d ----, 2007 WL 2380992 (Pa.Super.), 2007 PA Super 254 (Cite as: --- A.2d ---) [1]$ 5 More particularly, Appellant argues that, " although a purchaser of real property at a sheriffs sale acquires inceptive title to the purchased property as of the date of the sheriffs sale, the purchaser does not acquire the right of possession of the property until the sheriff sdeed has been acknowledged and delivered to the purchaser. [ ... ] Because the Appellee lacked the right to immediate and exclusive possession of the subject residential property when it instituted the instant ejectment action, the [trial] court lacked jurisdiction to grant the Appellee judgment for possession of the Appellant's residence, and the [trial] court's order must be reversed"Appellant's brief, at 7, 8. We agree with Appellant's position that title to property sold at a sheriffs sale does not transfer the right to possession until the sheriffs acknowledgement and recordation of the deed, but we disagree with Appellee's argument that once the deed is recorded the law relates the right to possession back to the. date the property was sold at sheriffs sale. *2 ¶ 6 From a historical perspective, The legal action of ejectment began not as a real property action, but as an action in trespass. Seitzinger v. Ridgway, 9 Watts 496 (1840). Ejectment originally rested on a claim of actual or constructive ouster of the plaintiff. 13 Stand.Pa.Prac. Ch. 67, § 1 (1957). Entry by the lessee and subsequent ouster by the defendant were essential to the claim of trespass. The writ of ejectment, however, has changed dramatically in the centuries since its narrow origin. Today, the right to possession is the central element of the action-not the claim of ouster. The writ of ejectment has long been the general method for obtaining possession of real property. Dice v. Reese, 342 Pa. 379, 384-86, 21 A.2d 89, 92-93 (1941); Irwin v. Hoffman, 319 Pa. 8, 16-17, 179 A. 41, 45 (1935). The writ has expanded from a tenant's remedy and has long since been available to fee claimants and all others who assert the right to possession of estates in real property. See Gilbertson Coal Co. v. Schuster, 403 Pa. 226, 228, 169 A2d 44, 45 (1961).[n.6] Yet it has never been suggested that a fee claimant need allege entry and ouster in order to succeed in ejectment. Rather, our cases involving fee claimants speak only of the right to possession by one not presently in possession. [ ... Page 3 [2][3][4]¶ 7 Furthermore, it is useful to engage in a brief discussion of the rights the parties seek to determine by filing an action in ejectment. Ejectment is an action filed by a plaintiff who does not possess the land but has the right to possess it, against a defendant who has actual possession. Soffer, at 266, 409 A.2d 337,409 A.2d at 343."The purpose of an ejectment action as opposed to quiet title is not to determine the relative and respective rights of all potential title holders, but rather the immediate rights between plaintiff and defendant involved in that particular litigation."Siskos v Britz, 567 Pa. 689, 699, 790 A.2d 1000, 1006 (2002). Our Supreme Court has held that the issue of possession is inextricably linked to jurisdiction in an action in ejectment. Siskos, at 701, 790 A.2d at 1006. Stated otherwise, a determination of possession is a jurisdictional prerequisite to the trial court's authority to entertain the merits of Appellee's complaint in ejectment. Id., at 701, 790 A.2d at 1006 ("As there must be possession to give the court its purely statutory jurisdiction, it cannot acquire jurisdiction where there is a mere contest, however substantial as to the fact of possession in the petitioner. [ ... ] Accordingly, a determination of possession is a jurisdictional prerequisite to a ruling on the merits [ ... ]."). $ 8 Initially, it is necessary to ascertain the rights acquired by the successful bidder at a sheriffs sale. It has long been established that a purchaser of real estate at a sheriffs sale acquires an inceptive, inchoate, or equitable estate. St. Charles B. & L. Association v. Hamilton, 319 Pa. 220, 223-24, 179 A. 604, 605 (1935). These estates bestow certain benefits upon the purchaser and, likewise, entail certain liabilities. These matters were summarized by the Pennsylvania Supreme Court in St. Charles B. & L. Association, supra; to-wit: *3 It is by no means true that a purchaser at a sheriffs sale gets none of the incidents of ownership until the deed is acknowledged. [ ] In Slater's App., 28 Pa. 169, it was held that the purchaser at the sheriffs sale prior to such acknowledgment gets an inceptive interest which may be bound by a judgment against him during this period (Morrison © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&prft=HTMLE&fn= top&mt=Pennsylvania&... 11/14/2007 Page 5 of 7 --- A.2d ---- Page 4 --- A.2d ----, 2007 WL 2380992 (Pa.Super.), 2007 PA Super 254 (Cite as: - A.2d ----) v Wurtz, 7 Watts 437);Stover v. Rice, 3 Wharton 21, decided that a purchaser at sheriffs sale acquires an equitable estate before the acknowledgment of the sheriffsdeed; Bellas v. McCarty, 10 Watts 13, states that a purchaser acquires an interest which descends to his heirs; Hoyt v. Koons, 19 Pa. 277, that a junior lienor cannot acquire title by foreclosure three weeks after a prior lienor had had the property knocked down to him but before his deed has been acknowledged; Elliott v. Peersall, 4 Clark 157, that one who became the wife of the debtor subsequent to the sale but prior to the acknowledgment of the deed, acquired no right of dower; Young's App., 2 P. & W. 380, that a debtor has no right to redeem his property by making a tender of the amount of the debt plus costs after the property has been knocked down by the sheriff, but before the deed has been acknowledged; Stroup v. Raymond, 183 Pa. 279, 38 A. 626, that a bona fide purchaser at sheriffs sale acquires a vested right to the property sold immediately; Penna. S. V.R. Co. v Cleary, 125 Pa. 442, 17 A. 468, that a purchaser at sheriffs sale acquires an inchoate title in the land by virtue of his bid and its acceptance by the sheriff. St. Charles B. & L. Association, at 223-24, 179 A. at 605. ¶ 9 Based on the aforesaid, it is manifest that the incidents of ownership that attach as a result of a successful bid at a sheriffs sale consist of various nomenclatures: an "inceptive title," an "inchoate title." Nowhere, however, is there any mention that the purchaser is the real owner. In fact, "[i]n all of these cases [above cited], and in many others which could be cited, the distinction is always made between the date of the sale and the date of acknowledgment of the deed. The two incidents are never treated as one."St. Charles B. & L. Association, at 224, 179 A. 604,179 A. at 606. [5][6]¶ 10"Ejectment is a possessory action only, and can succeed only if the plaintiff is out of possession, and if he has a present right to immediate possession."Brennan v. Shore Brothers, Inc.., 380 Pa. 283, 285, 110 A.2d 401, 402 (1955). This translates into the protocol necessary to initiate an action in ejectment, which cannot be maintained by the plaintiff unless he is out of possession, and he has a right to the possession of the property at the time of the commencement of the action. Id., at 285, 110 A.2d at 403;see also Bruker v Carlisle Borough, 376 Pa. 330, 334-35, 102 A.2d 418, 420 (1954) ("It is true that ordinarily, where the defendant is in possession and the plaintiff out of possession of the land the latter must bring an action in ejectment."). *4 ¶ 11 Herein, on November 17, 2005, when the complaint in ejectment was filed, Appellee was out of possession but had no right to immediate possession because the sheriffsdeed had yet to be acknowledged and recorded. See Girard Trust Co. u Dempsey, 129 Pa.Super. 471, 196 A. 593, 597 (Pa.Super. 193 8) ("[A]fter the delivery and recording of the sheriff sdeed [is] when the rights of the Girard Trust Company, Trustee, as purchaser would become effective[, ... then] it would be in a position to take proceedings to recover possession from the tenant[.] [ ... ] `Until the sale has been consummated by the acknowledgment and delivery of the deed, the debtor is entitled to possession with all its attendant advantages.' " (citation omitted)); see also Collins, supra (debtor-owner is entitled to the moneys paid by an insurance company because of a fire on the premises between the dates of the sheriffs sale and of the acknowledgment of the deed); Provident Trust Co. v Judicial B. & L. Association, 112 Pa.Super. 352, 171 A. 287 (Pa.Super.1934) (purchaser does not become entitled to the rents, as owner and in his own right, until acknowledgment of deed); Pennsylvania Co. u Pannonia Building Association, 29 D. & C. 194 (1937) (successful bidder at sheriffs sale does not immediately become owner liable for taxes assessed upon the realty after date of sheriffs sale, but prior to date of acknowledgment of sheriffsdeed; defendant liable for taxes as real or actual owner of premises prior to time deed of conveyance from sheriff). ¶ 12 At bar, there being no right to immediate possession before the sheriff acknowledging the deed, Appellee could not have initiated an action in ejectment when it did. Ergo, the present action was brought prematurely, which divested the trial court of jurisdiction to entertain Appellee's complaint in © 2007 Thomson/West. No Claim to brig. U.S. Govt. Works. http://web2.westlaw.com/printlprintstream.aspx?sv=Split&prft=HTMLE&fn= top&mt=Pennsylvania&... 11/14/2007 Page 6 of 7 --- A.2d ---- Page 5 --- A.2d ----, 2007 WL 2380992 (Pa.Super.), 2007 PA Super 254 (Cite as: --- A.2d ----) ejectment and issue a writ of possession and lock-out. Cf. Brennan, at 286, 110 A.2d at 403 (" On March 25, 1953, when the action to quiet title was instituted, plaintiffs (lessors) were out of possession and had no right to immediate possession [because the lessee had a lease in effect]. Having no right to immediate possession they could not successfully bring an action in ejectment [ ... ]." ¶ 13 In anticipation of our finding, Appellee counters with the argument that when the property was purchased with the "fall of the hammer" at the sheriffs sale (on November 7, 2005), it acquired an inchoate interest in the property. Therefore, when the deed was acknowledged and recorded (on January 20, 2006), Appellee's title related back to its inception, and it became the owner of the reversion from that time forward. See Appellee's brief, at 15. ¶ 14 It is beyond cavil that a bidder at a sheriffs sale, to whom the property has been awarded, has an interest (be it labeled "inceptive," "inchoate," or "equitable") even before the acknowledgment of the sheriff sdeed. See discussion supra."Yet it by no means follows from this, that after he has obtained his deed his title relates to the date of his bid in any such sense as to divest from that time the ownership of the debtor whose land has been sold. Undoubtedly it does not. Until the sale has been consummated by the acknowledgment and delivery of the deed, the debtor is entitled to the possession with all of its attendant advantages. Until then, the purchaser cannot move a step towards dispossessing the debtor[. ]"Garrett v. Dewart, 43 Pa. 342, 349 (1862); see also Collins, at 306-07, 30 A. at 926 (" But did the title pass by the sheriffs sale before acknowledgment of the deed? It certainly did not, as has been well settled, pass the right of possession until confirmation by the court[, but the present day submission is to the sheriff]. In Hawk v. Slouch, 5 S. & R. 157, where proceedings to obtain possession by the sheriffs vendee had been commenced before acknowledgment of the deed, it is held that: `The purchaser at sheriffs sale cannot call for the possession until the return of the writ and deed acknowledged; he cannot support ejectment; nothing is completed until the sale is confirmed by the court by the receiving and acknowledgment of the deed [ ... ]. No right attaches to the purchaser until he receives the deed.' " (emphasis added)).FN3 *5 ¶ 15 As is evident from the preceding discussion, the rudimentary precepts applicable to this Commonwealth's development of proprietary rules of law relating to sheriffs sales have their roots in a bastion of appellate cases published in the 19th and early 20th Century, but the passage of time has not altered their continued vitality. See Mohn v. Hahnemann Medical College & Hospital, 357 Pa.Super. 173, 515 A.2d 920, 922 (Pa.Super.1986) (sands of time did not render inapplicable reliance upon vintage case law to address a present day dispute).Accord Mecca El v. Murzyn, 831 A.2d 724, 728 (Pa.Super.2003). Consequently, applying the time-honored tenets of the law associated with rights inuring to a purchaser at a sheriffs sale to the facts sub judice, we find that Appellee's complaint in ejectment was premature because its "right to possession to the real estate did not attach until the sheriff acknowledged and recorded the deed, which occurred two months after the commencement of the lawsuit. The hiatus between the date of the sheriffs sale on November 7, 2005, and the recording of the deed by the sheriff on January 20, 2006, created a jurisdictional void which the trial court could not traverse to entertain Appellee's complaint in ejectment filed on November 17, 2005. ¶ 16 Accordingly, with the trial court's grant of Appellee's motion for summary judgment having been found to be entered in error, we will reverse the trial court's actions because Appellee is not entitled to judgment as a matter of law.FN4 Amabile; Bowman; Husak, supra. 117 Judgment reversed. Jurisdiction relinquished. FN1. In the complaint in ejectment filed by Appellee, both Appellant Maggie S. Long and Terrence L. Hubbard were named as defendants. However, after the entry of summary judgment, only Appellant Maggie S. Long filed a notice of C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&prft--HTMLE&fn= top&mt=Pennsylvania&... 11/14/2007 Page 7 of 7 --- A.2d ---- --- A.2d ----, 2007 WL 2380992 (Pa.Super.), 2007 PA Super 254 (Cite as: --- A.2d ----) appeal from the order granting the same. See Record Nos. 15, 17.This limits our use of "Appellant" to Maggie S. Long only when identifying the appealing party. FN2. The trial court granted Appellant's application for a supersedeas pending appeal, which was contingent upon Appellant paying $650.00 per month to Appellee throughout the pendency of the appeal process. See Order of Court dated October 20, 2006; Record No. 25. [n.6] [ ... ] Because the writ of ejectment was not a real property action, but originally was an action in trespass, it was not subject to the hypertechnical pleading rules which surrounded the common law real actions. This in part was responsible for the growth and popularity of ejectment . See generally Holdsworth, 7 History of English Law 4-10 (1926). [ ... J. Soffer v. Beech, 487 Pa. 255, 261 n. 6, 409 A.2d 337, 340 n. 6 (1979). FN3. The present day rules governing the commencement of an action in ejectment appear at Pa.R.C.P. 1051-1058. FN4. With the disposition of Appellant's first issue in her favor, we see no need to address the remaining five issues raised in her appellate brief at page 4. Pa. Super.,2007. Wells Fargo Bank, N.A. v. Long --- A.2d ----, 2007 WL 2380992 (Pa.Super.), 2007 PA Super 254 END OF DOCUMENT © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. http://web2.westlaw.comlprintlprintstream.aspx?sv=Split&prft=HTMLE&fn= top&mt=Pennsylvania&. Page 6 11/14/2007 r7l e?^ ` `J a? ,ca rr r? LQC t`.7 KERNS, PEARLSTINE, ONORATO & HLADIK, LLP By: Gregory W. Fox, Esquire Attorney I.D. No. 200846 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 215 855-9521 Attorney for Plaintiff LASALLE BANK NATIONAL ASSOC., as COURT OF COMMON PLEAS OF Trustee for Structured Asset Investment CUMBERLAND COUNTY, PA Loan Trust Series 2003-B C9 c/o WILSHIRE CREDIT CORPORATION, Respondent/Plaintiff V. NO: 06-7215 Civil Term TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and Any and All Unknown Occupants of 5008 Greenwood Circle Enola, PA 17025 Movants/Defendants ANSWER TO DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS Plaintiff, LaSalle Bank National Assoc., as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9, c/o Wilshire Credit Corporation, ("LaSalle"), by and through its undersigned counsel, hereby answers Defendants' Motion for Judgment on the Pleadings, as follows: 1. PARTIES 1. Admitted. 2. Denied. To the extent that LaSalle is without knowledge or information as to who "Deborah Murlin" is, it is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 2, and the same are, therefore, denied. II. FACTUAL BACKGROUND 3. LaSalle hereby incorporates by reference the preceding paragraphs, as though the same were set forth at length herein. 4-7. Admitted. III. PROCEDURAL HISTORY 8. LaSalle hereby incorporates by reference the preceding paragraphs, as though the same were set forth at length herein. 9. Admitted. 10. Denied. The averments set forth in paragraph 10 constitute characterizations of the Complaint, which is a document that speaks for itself, and the same are, therefore, denied. By way of further response, the Deed in favor of LaSalle was recorded on January 4, 2007, at Book 278, Page 1273, et seq. 11-13. Admitted. IV. STANDARD FOR JUDGMENT ON THE PLEADINGS 14. LaSalle hereby incorporates by reference the preceding paragraphs, as though the same were set forth at length herein. 15. Denied as stated, to the extent that Rule 1034(b) speaks for itself. 16. Admitted. 17. Denied. The averments set forth in paragraph 17 constitute conclusions of law to which no response is required. To the extent a response is required, the same are denied. 18-19. Admitted. 20. Denied. LaSalle is without knowledge or information sufficient to form a belief as to the truth of the averments set forth in paragraph 20 and the same are, therefore, denied. 21. Admitted. 22. Admitted in part and denied in part. While it is admitted that no trial has been set in this case, LaSalle cannot admit or deny that the reason for this is that Summary Judgment Motion is still pending, and the same is, therefore, denied. V. RESPONDENTS ARE ENTITLED TO JUDGMENT ON THE PLEADINGS 23. LaSalle hereby incorporates by reference the preceding paragraphs, as though the same were set forth at length herein. 24. Denied. The averments set forth in paragraph 24 constitute conclusions of law to which no response is required. To the extent a response is required, the same are specifically denied. By way of further response, the Wells Fargo Case should not be followed, as it improperly ignores prior Supreme Court precedent permitting ejectment actions to be filed prior to the recording of a Sheriffs Deed. WHEREFORE, LaSalle respectfully requests that Defendants' Motion for Judgment on the Pleadings be denied. RESPECTFULLY SUBMITTED, KERNS, PEARLSTINE, ONORATO & HLADIK, LLP Date: BY: GRE R' (W'POX, Esquire for Respondent/Plaintiff VERIFICATION Gregory W. Fox, Esquire, hereby states that he is the attorney for Plaintiff in this action; that he is authorized to and does take this Verification on behalf of said Plaintiff; and that the statements made in the foregoing Answer to Defendants' Motion for Judgment o the Pleadings are true and correct to the best of his knowledge, information and belief, and are based on information supplied to him by said Plaintiff. The undersigned understands that the statements herein are made subject to the penalties of 18 PA. C.S. §4904, relating to unsworn falsification to authorities. Date: KERNS, PEARLSTINE, ONORATO & HLADIK, LLP By: Gregory W. Fox, Esquire Attorney I.D. No. 200846 425 West Main Street P.O. Box 29 Lansdale, PA 19446-0029 (215) 855-9521 LASALLE BANK NATIONAL ASSOC., as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Respondent/Plaintiff V. TODD A. PERRY, CARRIE PERRY, CARRIE A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and Any and All Unknown Occupants of 5008 Greenwood Circle Enola, PA 17025 Movants/Defendants Attorney for Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA NO: 06-7215 Civil Term CERTIFICATE OF SERVICE I, Gregory W. Fox, Esquire, hereby certify that I served a true and correct copy of the Z reg gMg pleading, on the person(s) below, via first class mail, on Bruce J. Warshawsky, Esquire 2320 North Second Street Harrisburg, PA 17110 Date: Z-CO'V? .qf 1 -ri r f? ?,y IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LASALLE BANK NATIONAL ASSOC., as Trustee for Structured Asset Investment Loan Trust Series 2003-BC9 c/o WILSHIRE CREDIT CORPORATION, Respondent/Plaintiff NO. 06-7215 Civil Term vs. Todd A. Perry, Carrie Perry, Carrie A. MAILEY, BILL J. NICKEY, CAREL A. NICKEY, and any and all known occupants of 5008 Greenwood Circle, Enola, PA 17025 Movants/Defendants SUGGESTION OF BANKRUPTCY COME NOW the Movants/Defendants, Todd A. Perry and Carrie Perry/Carrie A. Mailey (collectively, the "Debtors"), through the undersigned Counsel, and would show the Court: 1. Debtors filed a petition for relief under Title 11, United States Code, in the United States Bankruptcy Court for the Middle District of Pennsylvania. Harrisburg Division, which bears the case number 1:08-bk-00303-MDF . 2. Relief was ordered on January 31, 2008. 3. This action is founded on a claim from which a discharge would be a release or that seeks to impose a charge on the property of the estate. 4. This is for informational purposes only and does not constitute a notice of appearance by the undersigned Counsel. WHEREFORE, the Debtors suggest that this action has been stayed by the operation of 11 U.S.C. § 362. Respectfully submitted, La C of Brian J. Tyler Bria J. Tyler, Esquire (PA77958) 3621 North Front Street Harrisburg PA 17110 (717) 230-9900 Bankruptcy Counsel for Debtors V CERTIFICATE OF SERVICE I, John Jacob Laughman, Assistant to Counsel, with the Law Offices of Brian J. Tyler, hereby certify that a copy of the foregoing Suggestion of Bankruptcy was served by first-class U. S. Mail, postage prepaid, on the following, on this day as noted below: Bruce J. Warshawsky, Esquire CUNNINGHAM & CHERNICOFF, PC 2320 North Second Street Harrisburg PA 17110 Gregory W. Fox, Esquire KERNS, PEARLSTINE, ONORATO & FATH, LLP 425 West Main Street PO Box 29 Lansdale PA 19446-0029 LAW OFFICES OF BRIAN J. TYLER By: Jo J Lau an Date: February 28, 2008 -. .?3 -77 ?? R