NEIL M.

KRUM, ESQUIRE
IDENTIFICATION NO. 31253 31 Ambler Road Ambler, Pa 19002 (215) 292-3535

Attorney for Defendent, pro se

: : U.S. BANK, N.A. TRUSTEE : FOR BNC MORTGAGE LOAN TRUST, : 2007-1, Plaintiff : : v. : : NEIL KRUM : : : :

IN THE COURT OF COMMON PLEAS MONTGOMERY COUNTY, PENNSYLVANIA CIVIL DIVISION No. 09-16774

Defendants Brief in Support of Preliminary Objections Defendant has filed Preliminary Objections, addressing solely the contents of Plaintiffs Complaint, and legal issues raised by said Complaint. This Brief in Support of Preliminary Objections will likewise address solely those items, with the exception of the following short statement: Plaintiffs Brief alleges that Defendant has filed frivolous Preliminary Objections merely to delay the foreclosure action. Plaintiff provides no support whatsoever for these characterizations. Courts have said otherwise, in the many decisions cited below, in upholding similar Preliminary Objections. Plaintiffs Brief contains several misstatements of fact. For example, Defendant nevertheless has expressly admitted to receiving the Notice... (Section VI., first paragraph). No citation is provided for such an express admission, nor could 1

there be such a citation: exists.

no such express admission

Finally, much of Plaintiffs Brief discusses issues not raised in the Preliminary Objections. For example, Section IV. Plaintiff has properly incorporated the mortgage documents by reference. These non-issues are ignored in this Brief of Defendant. 1.Failure of the pleading to conform to law or rule of court. Verification A verification is to be made ...by one of the parties... R.C.P. 1024(a). The Complaint included a verification only by counsel for the plaintiff; thereafter, by praecipe, plaintiff substituted a verification by a servicing agent. The law is clear that defendant is entitled to have the Complaint verified by one of the parties. Plaintiffs Brief states that the servicing agent. had the requisite authority to verify the allegations... This claim is nowhere supported by factual averments, nor by legal citation. The signer of the Verification is stated to be an employee of Chase Home Finance, not of the Plaintiff. There is no way to know what are the limits of her authority as an agent. The Superior Court of Pennsylvania has held that a verification by a Plaintiffs paralegal was wholly defective and inadequate... Atlantic Credit and Finance, Inc. v. Giuliana, 829 A.2d 340, 348 (Pa. Super, 2003). The Court noted that the paralegal had no personal knowledge of the facts and was not an officer of the corporate plaintiff. Writings referred to, to be attached Plaintiff is required to attach a copy of the writing, or the material part thereof, upon which its claims and defenses are based. R.C.P. 1019(i) 2

Paragraph 5 of the Complaint states that ...upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortagor, the entire principal balance and all interest due thereon are collectible forthwith. Plaintiff has failed to attach a copy of such written notice. Paragraph 9 of the Complaint states that Notice of Intention to Foreclose as set forth in Act 6 of 1974, Notice of Homeowners Emergency Assistance Program pursuant to Act 91 of 1983, as amended in 1998, and/or Notice of Default as required by the mortgage document, as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon.... Plaintiff has failed to attach copies of any such Notice(s). Plaintiffs Brief seeks to cure some of the failures, by attaching documents to said Brief. This does not comport to the Rules of Civil Procedure; exhibits are required to be attached to a Complaint (or an Amended Complaint). Pa.R.C.P. No. 1019(i). [T]he failure to attach the writings which assertedly establish appellees right to a judgment ... is fatal to the claims set forth in appellees complaint. Atlantic Credit, supra, at 349. 2. Insufficient specificity in the pleading. Paragraph 2 of the Complaint states that Defendant is/are the mortgagor(s) and/or real owner(s) of the property... Plaintiff gives no explanation as to why they cannot aver that Defendant is the mortgagor, or to aver that Defendant is the owner, or to aver both purported facts. Paragraph 9 of the Complaint states that Notice of Intention to Foreclose..., Notice of Homeowners Emergency Assistance Program..., and/or Notice of Default..., as applicable, have been sent to the Defendant(s) on the date(s) set forth thereon... These Notices are not incidental they are statutorily required 3

elements of Plaintiffs cause of action. Yet, it is impossible to know whether Plaintiff is claiming to have sent all 3 Notices, or 2 of them, or 1 of them or even none of them, since they apparently may not be applicable, in Plaintiffs judgment. Nor does Plaintiff see fit to mention the actual dates when any of such Notices might have been sent. Again, Plaintiff gives no explanation as to why they cannot aver specific dates. Paragraph 9 of the Complaint further states that Defendant(s) has/have failed to meet with the Plaintiff or an authorized consumer credit counseling agency or has/have been denied assistance ... Again, these averments are statutorily required elements of Plaintiffs cause of action. Again, without explanation Plaintiff refuses to aver facts specific to this individual case. In reading the Complaint, and these Preliminary Objections thereto, it becomes apparent that Plaintiff has employed boilerplate paragraphs in a word processing form. Plaintiff has merely inserted the name of Defendant and the dollar amount of this loan in this Complaint, and the names of numerous other defendants in other Complaints. In this Commonwealth, such use of boilerplate language is an unacceptable substitute for a Complaint with specific facts making up a particular claim. It makes it unduly burdensome, if not impossible, for Defendant to prepare his defense to Plaintiffs specific averments which is a key test of specificity in Pennsylvania. The Supreme Court of Pennsylvania, and the Commonwealth Court of Pennsylvania each sustained preliminary objections where a complaint lacked specificity in Muhammad v. Strassburger, 526 Pa. 541, 587 A.2d 1346 (1991), and in Commonwealth v. Shipley, 29 Pa. Cmwlth. 171, 370 A.2d 438 (1977). Lack of capacity to sue, nonjoinder of a necessary party or 4

misjoinder of a cause of action. Lack of capacity to sue Paragraph 1 of the Complaint recites: Plaintiff is U.S. Bank, N.A. Trustee for BNC Mortgage Loan Trust, 2007-1 0790 Rancho Bernardo Rd San Diego, CA 92127 Foreign corporations not registered here are barred from maintaining actions or proceedings in courts of this Commonwealth. Paragraph 3 of the Complaint recites: the mortgage was assigned to Plaintiff by MERS, Inc. as a nominee for BNC Mortgage, Inc. a Delaware corp. Successors and assignees of foreign corporations not registered here are barred from maintaining actions or proceedings in courts of this Commonwealth. The law on this issue was clearly explained in American Housing Trust, III v. Jones, 548 Pa. 311, 696 A.2d 1181 (1997.) That case, as here, involved Preliminary Objections based upon lack of capacity to sue of a foreign corporation.. The Supreme Court of Pennsylvania remanded the case to the trial court to take evidence, by depositions, interrogatories, or an evidentiary hearing, to enable it to determine whether Appellant's activities in this Commonwealth are excluded from the definition of "doing business" pursuant to section 4122(a)(7) and (a)(8), based on knowledge of the full nature and extent of Appellant's activities in Pennsylvania. It is then that the trial court may properly rule on whether Appellant was required to obtain a certificate of authority pursuant to section 4121 and is penalized, by a lack of capacity to sue, pursuant to 5

section 4141 for its failure to obtain a certificate of authority. American Housing Trust, supra, at 1185. The Court quoted from 21 Standard Pennsylvania Practice 2d sec. 113:125 as follows: A preliminary objection averring that the plaintiff is a foreign corporation doing business in Pennsylvania without having procured a certificate of authority raises a question of lack of capacity to sue, and the proper procedure for the plaintiff ... is to file an answer to the defendant's preliminary objections denying the factual averments therein, with the issue of fact thus raised to be decided by depositions. Non-joinder of necessary parties Plaintiff has failed to join necessary parties, including: Lender, BNC MORTGAGE, INC. A DELAWARE CORPORATION. Said Lender is named in the Mortgage relied upon by Plaintiff. See Paragraph 3 of Complaint. Said Mortgage states, inter alia,: (E) Note means the promissory note signed by Borrower and dated December 5, 2006. The Note states that Borrower owes Lender one hundred seventy-five thousand four hundred eighty and 00/100 Dollars (U.S. $175,800.00) plus interest. Plaintiff is attempting to foreclose on the property which is collateral for the described loan, and to potentially obtain proceeds from sale of the property, up to at least $186,436.23 (see paragraph 6 of Complaint). Without joining Lender in this action, unjust results which could ensue would include 1) Lender might be unable to obtain any repayment of their loan to Borrower, 2) Borrower might be subjected to double or multiple judgments for the same loan, and 3) inconsistent rulings might be reached in two different court proceedings, with respect to identical questions of fact and law. An indispensable party is one whose rights or interests are so 6

pervasively connected with the claims of the litigants that no relief can be granted without infringing on those rights or interests. Hubert v. Greenwald, 743 A.2d 977, 979 (Pa. Super. Ct., 1999), citing CRY, Inc. v. Mill Service, Inc., 536 Pa. 462, 468, 640 A.2d 372, 375 (1994). In Hubert, interests in a real estate party were divided amongst several individuals, pursuant to a land sale contract. Plaintiff failed to join one of those individuals, and the Court ruled that the individual was an indispensable party. Similar cases, with the same result, are Bolus v. United Penn Bank, 360 Pa.Super. 234, 520 A.2d 433 (1987); Waksmunski v. Delginis, 391 Pa.Super. 37, 570 A.2d 88 (1990). Legal insufficiency of the pleading (demurrer). Due to the defects described in the above Objections, the Complaint is so replete with errors, including errors fatal to the plaintiffs cause of action, that a demurrer to said Complaint should be sustained. Plaintiff has failed to respond to this objection. Where a defendant filed preliminary objections to plaintiffs complaint, on grounds of lack of specificity and demurrer, inter alia, the trial court properly sustained the preliminary objections and dismissed the complaint. Lerner v. Lerner, 2008 Pa. Super 183, 954 A.2d 1129, 1234.

Date

NEIL M. KRUM, ESQUIRE IDENTIFICATION NO. 31253 31 Ambler Road Ambler, Pa 19002 (215) 292-3535