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HomeMy WebLinkAbout00-5376 civil bzc/msj/swett FEDERMAN AND PHELAN By: MICHELE M. BRADFORD, ESQUIRE Identification No. 69849 Two Penn Center Plaza, Suite 900 Philadelphia, PA 19102 Attorney for Plaintiff (215) 563-7000 Principal Residential Mortgage, Inc. : Court of Common Pleas 711 High Street Des Moines, IA 50392 : Civil Division Plaintiff : Cumberland County VS. : No. 00-5376 James B. Swett, Jr. Amy L. Swett 1264 Hillside Drive Mechanicsburg, PA 17055 Defendants ORDER AND NOW, this j2-q~ dayof (~ , , 200~,upon consideration of Plaintiffs Motion for Summary Judgment and Brief in Support thereof, and upon consideration of the Response, if any, filed by Defendants, the Court determines that Plaintiff is entitled to Summary Judg~nent as a matter of law, and it is hereby: ORDERED and DECREED that an in tern judgment is entered in favor of Plaintiff and against Defendants, James B. Swett, Jr. and Amy L. Swett, for $126,804.26 plus interest from August 1, 2000 at the rate of $22.74 per diem and other costs and charges collectible under the mortgage, for foreclosure and sale of the mortgaged property. BY THE COURT: Michele M. Bradford, Esouire Steven C. Courtnev, Esouire FEDERMAN AND PHELAN By: MICHELE M. BRADFORD, ESQUIRE Identification No. 69849 Two Penn Center Plaza, Suite 900 Philadelphia~ PA 19102 Attorney for Plaintiff (215) 563-7000 Principal Residential Mortgage, Inc. : Court of Common Pl~as 711 High Street : Civil Division :~: Des Moines~ IA 50392 ,~/~ ~-. Plaintiff : Cumberland Count~_-~ ~ ~L'- . -'.. ':~ : No. 00-5376 James B. Swett, Jr. ~) to :~,.,~ Amy L. Swett 1264 Hillside Drive Mechanicsburg~ PA 17055 Defendants THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. ANY iNFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. IF YOU HAVE PREVIOUSLY RECEIVED A DISCHARGE IN BANKRUPTCY AND THIS DEBT WAS NOT REAFFIRMED, THIS CORRESPONDENCE IS NOT AND SHOULD NOT BE CONSTRUED TO BE AN ATTEMPT TO COLLECT A DEBT, BUT ONLY EFFORCEMENT OF A LIEN AGAINST THE PROPERTY. MOTION FOR SUMMARY .IITDGM-ENT Plaintiffrespectfully requests that the Court enter an Order granting summary judgment in its favor in the above-captioned matter and in support thereof avers as follows: 1. There are no material issues of fact. 2. Plaintiff is seeking only an in rem judgment in this mortgage foreclosure action. 3. Since Defendants admitted the default in paragraph five of their Answer to the Complaint, summary judgment for Plaintiff is appropriate, as is further addressed in Plaintiffs attached Brief. 4. Defendants, James B. Swett, Jr. and Amy L. Swett, have filed an Answer to the Complaint in which they have effectively admitted all of the allegations of the Complaint, as is further addressed in Plaintiffs attached Brief. 5. In their Answer, Defendants improperly deny, at least in part, paragraphs five and six of the Complaint, which aver the default and the amounts due on the Mortgage. True and correct copies of Plaintiffs Mortgage Foreclosure Complaint, Defendants' Answer are attached hereto, incorporated herein by reference, and marked as Exhibits C, and D, respectively. 6. Defendants have failed to sustain their burden of presenting facts, which contradict the averments of Plaintiffs Complaint. 7. Since this action is in rem only, the amount of the in rem judgment has no effect on the Defendants. 8. Defendants executed the Mortgage promising to repay the loan on a monthly basis. A true and correct copy of the Mortgage, which is recorded in the Office of the Recorder of Cumberland County in Mortgage Book No. 1309, Page 444, is attached hereto, made part hereof, and marked Exhibit A. A true and correct copy of the Note is also attached hereto, made part hereof, and marked Exhibit Al. 9. By Assignment of Mortgage dated April 22, 1996, the Mortgage was assigned to Principal Residential Mortgage, Inc., which Assignment is recorded in Assignment of Mortgage Book No. 518, Page 508. A tree and correct copy of the Assignment to Principal Residential Mortgage, Inc. is attached hereto, incorporated herein by reference, and marked as Exhibit A2. 10. The Mortgage is due for the March 1, 2000 payment, a period in excess of eight months. An Affidavit confirming the default and the amount of the debt is attached hereto, incorporated herein by reference, and marked as Exhibit B. 11. The notice provisions of Act 6 of 1974 do not apply to this action because the original Mortgage amount exceeds $50,000.00, as is further addressed in Plaintiff's attached Brief. 12. Nevertheless, Plaintiff sent Defendants a letter notifying them of their default and of Plaintiff's intent to foreclose. A true and correct copy of the letter is attached hereto, made part hereof, and marked Exhibit E. 13. The Temporary Stay as provided by the Homeowner's Emergency Mortgage Assistance Program, Act 91 of 1983, has terminated because Defendants have failed to meet with an authorized credit counseling agency in accordance with Plaintiffs written notice to Defendants. A true and correct copy of the Notice of Homeowner's Emergency Mortgage Assistance Program is attached hereto, made part hereof, and marked Exhibit E. 14. Plaintiff has complied with Act 6 of 1974, 41 P.S. §403(a), and Act 91 of 1983, 35 P.S. §1680.401c, by sending Defendants the combined notice provided for under Act 91. A true and correct copy of the combined notice is attached hereto, made part hereof, and marked as Exhibit E. 15. Defendants have the right to reinstate the loan up until one hour before a scheduled Sheriff's Sale. WHEREFORE, Plaintiff respectfully requests that an in rem judgment be entered in its favor for the amount due plus interest and costs as prayed for in the Complaint, for foreclosure and sale of the mortgaged property. Respe~ ~lly~ubmitte/O Attorne',~r PlainfifT-'