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HomeMy WebLinkAbout95-06567 '\ .,'. :'~ ,;. '.t' .,,:', ,,~:;- . :\'~'B"" ':;,:' ~-.. ' f;t~ ,,-':] ij:," : f! ,:- p 41:'YCt" . ~lb\'_;l_: ~!~'r U"> rT ;, ""-1 :",\ l~. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEDERAL NATIONAL MORTGAGE ASSOCIATION, Assignee of AMERICAN RESIDENTIAL MORTGAGE CORPORATION. Assignee of GMAC MORTGAGE CORPORATION OF PA Plaintiff, vs. WARREN P. MERKEL. JR. and DEBRA J. MERKEL. his wife Defendants. CIVIL DIVISION NO. 9.1- ft,~ 7 t'dJj~c~J1 COMPLAINT IN MORTGAGE FORECLOSURE Code MORTGAGE FORECLOSURE Filed on behalf of Plaintiff Counsel of record for this party: Louis P. Vitti. Esquire PA J.D. #3810 Supreme Court N01072 Louis P. Vitti & Assoc., P.C. 916 Fifth Avenue Pittsburgh. PA 15219 (412) 281-1725 N.QIItE 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 THE ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES AND 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 SHOULD NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND LAWYER REFERRAL SERVICE COURT ADMINISTRATOR 3RD FLOOR CUMBERLAND COUNTY COURTHOUSE CARLISLE, PA 17013 (717) 697-0317 ~OMPLAINT IN MORTGAGE FORECLOSURE AND NOW, comes the Plaintiff by its attorneys, Louis P. Vitti and Associates, P.c. and Louis P. Vitti, Esquire, and pursuant to the Pennsylvania Rules of Civil Procedure Numbers 1141 through 1150, for its Complaint in Mortgage Foreclosure, sets forth the following: 1. The Plaintiff is a corporation organized under the laws of the Commonwealth of Pennsylvania and existing pursuant to the Federal National Mortgage Association Charter Act, having a principal place of business located at 1900 Market Street, Suite 800, Philadelphia, PA. 2. The Defendant(s) islare individuals residing at R,D. #2, Box 100-56, Newville, PA 17241. The property address is the same as above and is the subject of this action. 3. On the 15th day of January, 1993, in consideration of a loan of Fifty Thousand and 00/100 ($50,000.00) Dollars made by GMAC Mortgage Corp. of PA, a PA corporation, to Defendants, the said Defendants executed and delivered to GMAC Mortgage Corp. of PA, a PA corporation, a "Note" secured by a Mortgage with the Defendants as mortgagors and GMAC Mortgage Corp. of PA, as mortgagee, which mortgage was recorded assigned to the Plaintiff, Federal National Mortgage Association, the said mortgage, that assignment being recorded in the Office of the Recorder of Deeds of Cumberland County and the said assignment is Incorporated herein by reference. 6. Said mortgage provides, inter alia: "that when as soon as the principal debt secured shall become due and payable, or in case default shall be made in the payment of any Installment of principal and interest, or any monthly payment, keeping and performance by the mortgagor of any of the terms, conditions or covenants of the mortgage or note, it shall be lawful for mortgagee to bring an Action of Mortgage Foreclosure, or other proceedings upon the mortgage, of principal debt, interest and all other recoverable sums, together with attorney's fees." 7. Since March 1, 1995, the mortgage has been in default by reason, inter alia, of the failure of the mortgagor to make payments provided for in the said mortgage (Including principal and interest) and, under the terms of the mort8age, the entire principal sum is due and payable. 8. In accordance with the appropriate Pennsylvania Acts of Assembly and the Pennsylvania Rules of Civil Procedure, the mortgagor has been advised in writing of the mortgagees intention to foreclose. The appropriate time period has elapsed since the Notice of Intention to Foreclose has been served upon the mortgagor. 9. The amount due on said mortgage is itemized on the attached schedule. 10, Plaintiff does hereby release the personal representative, heir and/or devisee of the mortgagor from liability for the debt secured by the mortgage. WHEREFORE, pursuant to Pennsylvania Rule of Civil Procedure Number 3 1147(6), Plaintiff demands judgment for the amount due of Fifty Nine Thousand Five and 021100 Dollars ($59,005.02) with Interest and costs. Respectfully submilled, LOUIS p, VITTI & ASSOC., P.C. .rd4flJjjJ Morney for Plaintiff 4 /' ... ~~"-"",L"_ . " ~ ~ / r..,--- ._ .,'_..W.......~._,,_~_.....- VERIFICATION AND NOW Louis P. Vitti verifies that the statements made in this Complaint are true and correct to the best of his knowledge, information and belief. I understand that false statements herein are made subject to thl:! penalties of 18 Pa.C.S. 4904, relating to unsworn falsification to authorities. By virtue of the fact that the Plaintiff is outside the jurisdiction of the court and the verification cannot be obtained within the time allowed for the filing of this pleading, the pleading Is submitted by counsel having sufficient knowledge, information and belief based upon the Information provided him by the Plaintiff. &12U6 Dated: November 13, 1995 .~ ,t'.~"~~~f' '-: ~',":'~:\~"~u'<lu,~d~." '" _~'-~,:~~L~,-",,~,,"j';;t~..,,!~~_,~~~.v.,;_""..~A'~' :~C'; ,,,~ .--" ..'-...._--... -.-...-- ',...-... ,.~'.... i' , ... .....1'-.... '- ..... "" ., ,-..'.'" - , l IJ"I ~, ,.." :-r: I (:; 0._ ~, .: ".1 ::..: ("':'::.7 -:t :~,..'t;! :.:: ~,' ':; "\ ~B ~\-\ ~~ rtI~ f"\....... \>.;,fY) t\ , " !;I J'" ,_.,11..,1 . .~ ,- .- , . - '.; .,:.:! .,'" \8) .........-...- ---.....- ~ .... 0--- ~.--- " ~" '" -".-.""...-- - .. '. , PEDIRAL NATIONAL MORTGAGE ASSOCIATION, A..ignee ot AMERICAN RESIDENTIAL MORTGAGE CORPORATION, A.eignee ot GMAC MORTGAGE CORPORATION OF PA, plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 95-6567 CIVIL TERM v. . : MORTGAGE FORECLOSURE WARREN P. MDltEL, JR. and DEBRA J. MDltEL, hi. wite Detendant. . . PRELIMINARY OBJECTIONS COME NOW the detendant., Warren P. Merkel, Jr., and Debra J. Merkel, by coun.el, Philip C. Briganti, E.quire, Legal Service., Inc., and rai.e the tollowing Preliminary Objections to Plaintitt'. Complaint: Failur. ~o Conform to Rul. of Court 1. Rule 1147 (1) ot the Pennsylvania Rule. of civil Procedure provide. that, in an action ot mortgage toreclosure, the plaintitt .hall .et torth in the complaint "the parties to and the date ot the mortgage, and ot any a..ignments, and a .tat...nt ot the place and record ot the mortgage and a..ignment.." 2. In Plaintitt's Complaint, Plaintitt avers that plaintift i. an a..ignee ot the alleged mortgage, but tails to aver the date the mortgage was assigned to Plaintitt and the record of the alleged a..ignment. " Co.' LoLl C;:J In c' ?:; _c. ::J.~ 0-'.- (.)~~ r..:l;:.'j ..," ... :.:n.!] ..Ir". (I~ -:.. l..~(j ,.....,... ..-........ :5 u f- In .. 9 :r.: ..:: l " is In . l' _...... ,.'.... ,- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA FEDERAL NATIONAL MORTGAGE ASSOCIATION, Assignee of AMERICAN RESIDENTIAL MORTGAGE CORPORATION. Assignee of GMAC MORTGAGE CORPORATION OF PA CIVIL DIVISION NO. 95-6567 Civil Tenn AMENDED COMPLAINT Plaintiff, Code MORTGAGE FORECLOSURE vs. Filed on behalf of Plaintiff WARREN p, MERKEL. JR. and DEBRA J. MERKEL, his wife Counsel of record for this party: Defendants. Louis P. Vitti. Esquire PA J.D. #3810 Supreme Court 101072 Louis P. Vitti & Assoc., P.C. 916 Fifth Avenue Pillsburgh. PA 15219 (412) 281-1725 .' . 'It.- -. rmIItE 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 THE ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES AND 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 SHOULD NOT HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE THE ALLEGHENY COUNTY BAR ASSOCIATION 920 CITY-COUNTY BUILDING PlnSBURGH, PA 15219 (412) 211-0518 .. . .'. . Plaintiff demands judgment for the amount due of Fifty Nine Thousand Five and 021100 Dollars ($59,005.02) with Interest and costs. Respectfully submitted, lOUIS P. VITTI AND ASSOCIATES, P.C. BY: .." ~-?05' 1..../ louis P. Vitti, Esquire Attorney for Plaintiff _: ...r..... ,.,,,,,~,, -- ,- I, Louis P. Vitti, Esquire, hereby certify that on the d9/h day of [jfl(,ehn6l/l ,19 95 ,atrueandcorrectcopyofthewithinAmended Complaint was served upon Philip C. Briganti, Esquire, by Regular U.S. Mail. ~',/ ~ ,,'~"""'1oI \ "'~ii~_":""I..-':Il-~ ,r.; , -.c., , ,- "-k(~. " ',1;._ ~...t :~t:\ ,,~U~ i'~}~' ~{, ,.,.t,. :r, ',~t;, '."" , ,-,. ., '~'(;'-- -..' ~.;;S"' 'C.,",. ,oF <.0 ..... 03 ~~ M ..1.,. (;h1 :I: W~'~ 0.. G~~ ". :;.;~~~ I ii~~ : :;.- l ~J :[J ",'; ~qa. -, """ '-':> ::> c.... u -~;~'~~v~:~~~(~-' ~:i~~!:P~' -.,..,_.,,...-~.,._~,.. ", \," -''';'',''\'"'\'''",',-,'' CF;__--c.,-..i-,-" .' FEDERAL NATIONAL MORTGAGE IN THE COURT OF COMMON PLEAS OF ASSOCIATION, Assignee of AMERICAN RESIDENTIAL MORTGAGE CUMBERLAND COUNTY, PENNSYLVANIA CORPORATION, Assignee of GMAC MORTGAGE CORPORATION OF PA, CIVIL ACTION - LAW Plsintiff v,. NO. 95-6567 CIVIL TERM MORTGAGE FORECLOSURE WARREN P. MERKEL, JR. and DEBRA J. MERKEL, his wife Defendants NOTICE TO PLEAD TO: Federal National Mortgage Association You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from service hereof or a jUdgment may be entered against you. Date: I-i '7- 'l~ Phil ip . Brig Attorney for D fendants LEGAL SERVICES, INC. a Irvine Row Carlisle, Pa 17013 (717) 243-9400 . However, they deny that under the terms of the mortgage, the entire principal sum is due and payable. As set forth below in Defendants' New Matter, they aver that they have not received from Plaintiff the "Act 6" or "Act 91" notices, which must be served upon them before the maturity of the mortgage can be accelerated. 8. Denied. Defendants deny that they have been advised in writing of the mortgagee's'intention to foreclose, in accordance with the appropriate Pennsylvania Acts of Assembly and the Pennsylvania Rules of Civil Procedure, and that the appropriate time period has elapsed since any purported Notice of Intention to Foreclose has been served upon the mortgagor. 9. Denied. Defendants deny that the amount due on said mortgage is itemized on the schedule attached to Plaintiff's Complaint. Particularly, Defendants deny that they owe Plaintiff attorney's fees of $2,456.03, that Plaintiff is permitted to accelerate the maturity of the mortgage, and that there is a balance due of $59,005.02. 2. Admitted. NEW MATTER I. Lack of Subject Matter Jurisdiction 3. Defendants did not receive, and therefore aver that they were not properly served with, an "Act 6" notice in compliance with 41 P.S. Section 403, before Plaintiff accelerated the maturity of the mortgage or commenced these foreclosure proceedings. 4. Defendants did not receive, and therefore aver that they were not properly served with, an "Act 91" notice in compliance with 36 P.S. Sections 1680.402c and 1680.403c, before Plaintiff accelerated the maturity of the mortgage or commenced these foreclosure proceedings. 6. Because Defendants did not receive and were not properly served with the said notices, this Court does not have jurisdiction over the sUbject matter of this action. II. Unreasonable Attornev's Fees 6. The attorney's fees sought by Plaintiff in the amount of $2,466.03 are unreasonable and/or exceed attorney's fees actually incurred by Plaintiff, in violation of 41 P.S. Section 406(2). 7. The attorney fees sought by plaintiff are unconscionable. WHEREFORE, Defendants respectfully request that this action be dismissed, and that the relief requested by Plaintiff be denied. Respectfully submitted, Phil ip . Brigan Attorney for Def ndants LEGAL SERVICES, INC. a Irvine Row Carlisle, PA 17013 (717) 243-9400 The above-named Defendant, Debra J. Merkel, verifies that the statements made in the above Answer and New Matter are true and correct. Defendant understands that false statements herein are made SUbject to the penalties of 18 Pa. C.S. 64904, relating to unsworn falsification to authorities. Date: ~tln I 51 f/Q~ . dd,<,JJ l()~uk~ Debra J: Merkel, Defendant FEDERAL NATIONAL MORTGAGE IN THE COURT OF COMMON PLEAS OF ASSOCIATION, Assignee of AMERICAN RESIDENTIAL MORTGAGE CUMBERLAND COUNTY, PENNSYLVANIA CORPORATION, Assignee of GMAC MORTGAGE CORPORATION OF PA, CIVIL ACTION - LAW Plaintiff v. NO. 95-6567 CIVIL TERM MORTGAGE FORECLOSURE WARREN P. MERKEL, JR. and DEBRA J. MERKEL, his wife Defendants CERTIFICATE OF SERVICE I, Philip C. Briganti, hereby certify that a copy of the d- foregoing Answer and New Matter has this II day of January, 1996, been served upon Louis P. Vitti, Attorney at Law, Louis P. Vitti l Associates, P.C., 916 Fifth Avenue, Pittsburgh, Pennsylvania, 15219, by regular mail. Philip Attorney for Def ndants LEGAL SERVICES, INC. a Irvine Row carlisle, PA 17013 (717) 243-9400 ~) en ',~ ..:r I.. .. t~ - ..' ~; - -....1. I U._ ,-" ,. ;i1 ! :~ ~- ~ ~~ ',1" e"' ; :, ,.1 ~ i;;;:J .' I';;!1 f:: . , !.'.:~ -'. ::.1 ~ '.f'r c. U j,:.