FILED WILKES BARRE Cano Sabatini, Eaguie co go. $3831 {aw Office of Caro Sabatini 223 Northern Biv, Suite 100 Jun 20 Po Bor 1 Chinchilla PA. 18810 (G70) si4-sa4s Clerk, U.S. Bankruptey Court IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Inre Donna Kordish, Chapter 13 Debtors Donna Kordish Case No. 02-00501 Charles J. DeHart I, Esquire, Trustee “em ADVERSARY v. = +o Mellon Bank, N.A. ‘Adversary’ Respondent - __ COMPLAINT I. Preliminary Statement 1. Defendant recorded its mortgage pre-petition. However, the period of time between Debtor’s execution of the mortgage and Defendant's recording of the mortgage was greater than the time permitted under Pennsylvania law. Consequently, the mortgage is void. II. Jurisdiction >, Jurisdiction is conferted on this Court by 28 U.S.C. § 1334 im that this proceeding arises under ttle 11 of the United States Code, arises in and is related to the above-captioned chapter 13 case under ttle 11, and concems property of the Debtors in that case. This proceeding is a core proceeding. Il. Parties 3, Plaintiff, Donna Kordish, is an individual who resides at 1018 Lower Pleasant Avenue, Peckville, Pennsylvania and is the debtor in this bankruptey case4, Plaintiff, Charles J. DeHart, 1, Esquire, is the trustee in this bankruptey case: 5 Defendant, Mellon Bank, N.A., is a corporation with headquarters in Pittsburgh, Pennsylvania. IV. Claims Claim One 6. On February 14, 1997, Debtor obtained a loan from Mellon Bank, Defendant's predecessor-in-interest, in the amount of $66,336.00 and executed and delivered to Mellon Bank a mortgage on her residence situate at 1018 Lower Pleasant Avenue, Peckville, Lackawanna County, Pennsylvania. 4. The mortgage was recorded in the office of the Recorder of Deeds of Lackawanna County on December 15, 1997, more than ten months after it was granted. 8, Debtor filed a bankruptey petition on February 11, 2002. 9, The failure of Mellon Bank to record the mortgage within ninety days of the date of filing renders it void. 10. 21 P.S. $444 states, in relevant part: [All deeds and conveyances, which, from and after the passe of this act, shall be made and executed within this commonwealth of aon eceming any lands, tenements or hereditaments inthis ce cmonwealth,.. shall be tecorded in the office for the recording of deeds where such lands, tenements or hereditaments fre lying and being, within ninety days after the execution of such aeane conveyance, and every such deed and conveyance that crett at any time after the passage of this act be made and executed snails cornmonweatth, and which shall not be proved and recorded in Moresaid, shall be adjudged fraudulent and void agains? Any subsequent purchaser ot mortgagee for a valid consideration, or any creditor of the grantor or bargainor in said deed of conveyance, 11, Amortgage is a defeasible deed.12. Debtor’s mortgage was made and executed after the passage of the act now codified at 21 P.S. § 444. 13. The mortgage was executed within this commonwealth. 14. The mortgage concems lands in this commonwealth. 15, ‘The mortgage was not recorded within ninety days of its execution, 16. The mortgage is fraudulent and void against any subsequent purchaser or mortgagee for a valid consideration. 17. Pursuant to § 544(a)(3) the Trustee may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by a bona fide purchaser of real property from the debtor. 18. The mortgage is void as against the trustee. Claim Two 19, ‘The allegations of paragraphs 1 ~ 18 are incorporated herein as though set forth more fully at length. 20, 21 PS. § 621 states in relevant part: No deed or mortgage, or defeasible deed, in the nature of mortgages, hereafter to ‘be made, shall be good or sufficient to convey of pass any freehold or inheritance, orto grant any estate thereia for life or years, unless such deed be acknowledged or proved and recorded within six months after the date thereof, here such lands lie, as hereinbefore directed for other deeds. 21. The mortgage was not recorded within six months ofits execution. 22. The mortgage is void as against the Debtor. ortgage is void and WHEREFORE, Plaintiffs respectfully request this court declare the m award such other relief as is just and proper.(abe Sadat> Carlo Sabatini Attorney for Debtor Aftomey for TrusteeCarlo Sabatini, Esquire TdNo. 83831 Law Office of Casto Sabatini Suite 800, Scranton (570) 341-9000 IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA In re Donna Kordish, | Chapter 13 Debtors Donna Kordish, Case No. 02-00501 Charles J. DeHart III, Esquire, Trustee Movants v, Mellon Bank, N.A. Respondent _ c I, Kim Bryden, of The Law Adversary:_ TIFICATE OF SERVICE Office of Carlo Sabatini certify, that I am, and at all times hereinafter mentioned was, more than 18 years of age, and that on June 19, 2002 I served a copy of the within Complaint upon the following parties at their respective addresses by depositing same in the United States Mail, First Class, Postage Prepaid addressed to: Charles J. Dehart, IIT Chapter 13 Trustee, MD of PA P.O. Box 410 Hummelstown, PA 17036 James Shoemaker, Esquire Law Offices of HKQ Mellon Bank Center, Suite 700 Wilkes-Barre, PA 18701-1867 {certify under penalty of perjury that the foregoing is true and correct. Executed on: June 19, 2002 “Kim Bryden Paralegal[EFFECTIVE JULY 4, 1995, ALL CASES, MATTERS, AND PROCEEDINGS PENDING OR THEREAFTER FILED IN THE WILKES-BARRE. [DIVISION SHALL. BE GOVERNED BY THE PROVISIONS OF THE BANKRUPTCY PRACTICE ORDER & FORMS FOR THE NORTHERN TIER OF| |THE MIDDLE DISTRICT OF PENNSYLVANIA ("B.P.0."), AS AMENDED. UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Adversary: 5-02-00175A vs, ALL DOCUMENTS REGARDING THIS MATTER MUST BE IDENTIFIED BY BOTH ADVERSARY AND MELLON BANK, NA Defendant(s) BANKRUPTCY CASE NUMBERS. SUMMONS WILKES BARRE FILED To-the above-named defendant: JUN 26 2002 You are hereby summoned AND REQUIRED TO SERVE upon plaintiff's attorney: CARLO SABATINI SUITE 800 142 N. WASHINGTON AVENUE SCRANTON, PA 18703-2218 Clerk, U.S. Bankruptcy Court ‘A MOTION OR ANSWER to the complaint which is herewith served upon you ON OR BEFORE JULY 26, 2002 AND TO FILE THE MOTION OR ANSWER WITH THIS COURT not later than the second business day thereafter. IF YOU FAIL JO DO SO, JUDGMENT BY DEFAULT MAY BE TAKEN AGAINST YOU for the relief demanded in the complaint. ‘The parties are directed to the applicable provisions of the Federal Rules of Bankruptcy Procedure and the Bankruptcy Practice Order and Forms for the Northern Tier of the Middle District of Pennsylvania which will govern disposition of their pleadings. The plaintiff is directed to serve the summons and complaint in accordance with Federal Rule of Bankruptcy Procedure 7004(f) Zak, US. Bank 274 Max Rosenn U.S. Courthouse 197 South Main Street Wilkes-Barre, PA 18701 DATE OF ISSUANCE: June 26, 2002feev' 807) ADVERSARY PROCEEDING COVER SHEET ee ROC EEOING NUMBEF (instructions on Reverse) PLAINTIFFS DEFENDANTS [ATTORNEYS (Firm Name, Address, and Telephone No.) "ATTORNEYS (If Known) PARTY (Check one box only) 11 uS. PLAINTIFF (1 2 US. DEFENDANT 1 3US.NOTAPARTY CAUSE OF ACTION (WRITE A GRIEF STATEMENT OF CAUSE OF ACTION, INCLUDING ALL U.S. STATUTES INVOLVED) IKI 454 To Recover Money or Property Ca 435 To Determine Valicty, Prior Extent ofa Lien or Other Interest in Property C1458 To obtain approval forthe sale of bath the interest ofthe estate and ‘of a co-owner in property 424 To object or to revoke a discharge NATURE OF SUIT (Check the one most appropriate box only.) D455 To revoke an order of confirmation of a Chap. ‘Mor Chap. 13 Plan Di 426 To determine the dischargeabilty of a debt 11 US.C. $523, 434 To obtain an injunction or other equitable relit C1487 To subordinate any alowed claim or interest ‘except where such subordination is provided 0456 To obtain a declaratory judgment relating to any of foregoing Causes of action D489 To determine a claim or cause of ‘action removed to a bankruptcy ‘court 498 other (specify) USE. §727 inaplen ORIGIN OF Towra U2Removed tla4Reinstated 115 Tranatowed Proceeding Proceeding ‘or Reopened from Another |] CHECK IF THIS IS A CLASS PROCEEDINGS * * sper Bankruptcy ACTION UNDER F.R.C.P. 23 (Check one box ony) Gourt OTHER RELIEF SOUGHT ORY DEMAND DEMAND ESRB ended in complaint BANKRUPTCY GASE IN WHIGH THIS ADVERSARY PROCEEDING ARISES INAME OF DEBTOR ‘BANKRUPTCY CASE NO. DISTRICT IN WHICH CASES PENDING | DIVISIONAL OFFICE NAME OF JUDGE RELATED ADVERSARY PROCEEDING (F ANY) PLAINTIFF DEFENDANT [ADVERSARY PROCEEDING NO. DISTRICT DIVISIONAL OFFICE NAME OF JUDGE FILING (Check one box only.) (FEE ATTACHED C1 FEE NOT REQUIRED 0 FEE Is DEFERRED loare PRINT NAME ‘SIGNATURE OF ATTORNEY (OR PLAINTIFF)Law Orrice O SABATINI RN BOULEVARD, SUITE 100 7, Ee rastst OL CARLO SABATINI SUITE 800, 142 N. WASHINGTON AVE. SCRANTON, PA 18503-2218