J-S51015-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RBS CITIZENS, N.A. SUCCESSOR IN IN THE SUPERIOR COURT OF INTEREST TO CCO MORTGAGE PENNSYLVANIA CORPORATION
Appellee
v.
ERIC BRODIE AND ADINA BRODIE
Appellants No. 3316 EDA 2014
Appeal from the Judgment Entered October 21, 2014 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2013-01556
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 14, 2015
Appellants, Eric Brodie and Adina Brodie (“the Brodies”), appeal from
the summary judgment entered in the Bucks County Court of Common
Pleas, in favor of Appellee, RBS Citizens, N.A. successor in interest to CCO
Mortgage Corporation (“RBS Citizens”), in this mortgage foreclosure action.
We affirm.
The trial court opinion fully sets forth the relevant facts and procedural
history of this case. Therefore, we have no reason to restate them.1
____________________________________________
1 The court granted summary judgment in favor of RBS Citizens by order dated October 20, 2014, entered on the docket on October 21, 2014, with notice sent on October 28, 2014. The Brodies timely filed a notice of appeal (Footnote Continued Next Page)
________________________
*Retired Senior Judge assigned to the Superior Court. J-S51015-15
The Brodies raise the following issues for our review:
DID THE TRIAL COURT COMMIT AN ERROR OF LAW IN ITS GRANT OF SUMMARY JUDGMENT WHEN THERE DID NOT EXIST A NOTE TRANSFER BY NEGOTIATION THROUGH THE CHAIN OF LOAN TITLE IN FAVOR OF [RBS CITIZENS] BELOW AND THERE WAS NO ASSIGNMENT OF MORTGAGE LIKEWISE?
DID THE TRIAL COURT COMMIT AN ERROR OF LAW IN ADMITTING THE OTHERWISE INADMISSIBLE AFFIDAVIT IN SUPPORT OF…[RBS CITIZENS’] MOTION FOR SUMMARY JUDGMENT AS WELL AS UPON THAT AFFIDAVIT’S LIKEWISE INADMISSIBLE FOUNDATION?
(The Brodies’ Brief at 8).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the comprehensive opinion of the Honorable Albert J.
Cepparulo, we conclude the Brodies’ issues merit no relief. The trial court
opinion discusses and properly disposes of the questions presented. (See
Trial Court Opinion, filed January 20, 2015, at 6-8; 12-15) (finding: (1) CCO
Mortgage Corporation is original mortgagee and lender; when court granted
summary judgment, 15 Pa.C.S.A. § 1929 was controlling,2 which provided
that, upon merger, surviving or new corporation succeeds to rights and
liabilities of merged corporation; RBS Citizens produced Certificate of Merger
_______________________ (Footnote Continued)
on November 20, 2014. On November 25, 2014, the court ordered the Brodies to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and the Brodies timely complied. 2 On October 22, 2014, the legislature repealed Section 1929, and re- codified the statute at 15 Pa.C.S.A. § 336 (effective July 1, 2015).
-2- J-S51015-15
with official seal by Comptroller of Currency of Treasury Department, signed
September 18, 2007 (effective September 1, 2007); official certification
evidences that CCO merged into RBS Citizens, such that RBS Citizens
assumed all of CCO’s assets and liabilities, including Brodies’ mortgage and
note; thus, RBS Citizens did not have to produce assignment of mortgage,
where merger effectively resulted in RBS Citizens’ assumption of mortgage;
(2) RBS Citizens’ loan history records, obtained in regular course of
business, did not trigger Nanty-Glo3 rule because such evidence is not oral
testimony or dependent upon credibility and demeanor of any witnesses;
additionally, Brodies produced no evidence to refute computation of
damages contained in affidavit by David Salley (officer and litigation
manager of RBS Citizens) or accuracy of RBS Citizens’ loan history records,
except to claim they are “indecipherable”; moreover, Brodies’ general
denials to itemized list of amounts owed constituted admissions in mortgage
foreclosure action).4 Accordingly, we affirm on the basis of the trial court’s
opinion.
Judgment affirmed.
3 Borough of Nanty-Glo v. American Surety Co. of New York, 309 Pa. 236, 163 A. 523 (1932). 4 The correct citation for LTV Steel Company, Inc. v. W.C.A.B. (Mozena) is 562 Pa. 205, 754 A.2d 666 (2000).
-3- J-S51015-15
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/14/2015
-4- Circulated 09/03/2015 01:32 PM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA CIVIL DIVISION
RBS CITIZENS, N.A., SUCCESSOR IN No. 2013-01556 INTEREST TOCCO MORTGAGE CORP. 3316 EDA 2014
vs.
ERIC BRODIE AND ADINA BRODIE 1111 case#: J:f1Wt1~,III Ill 2013.01556 809 10770949
Code 5214 Judge:30 OPINION Patricia L. Bachtle, Bucks County Prothonotary Rcpt Z1239909 1120/2015 1 :53:56 PM
I. INTRODUCTION
Appellants/Defendants Eric Brodie and Adina Brodie appeal to the Superior Court of
Pennsylvania from this Court's grant of Appellee/Plaintiff RBS Citizens' Motion for Summary
Judgment. We file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure
(Pa.R.A.P.) 1925(a).
II. FACTUAL AND PROCEDURAL BACKGROUND
On June 19, 2007, Eric Brodie and Adina Brodie ("Defendants") made, executed and
delivered a Mortgage to CCO Mortgage Corp. in the amount of $360,000.00. Complaint at']{ 3,
Exh. A. The Mortgage applied to 41 Carol Lane, Richboro, PA 18954 ("Subject Property") and
was recorded in the Office of the Recorder of Deeds in Bucks County on July 19, 2007 in
Mortgage Book 5465, Page 1194. Compl. at TJ[ 3, 5, Exh. A. Additionally, Defendants executed
a Promissory Note in consideration of the loan on June 19, 2007. Compl. at 'I[ 4, Exh. B.
Plaintiff is the successor in interest to the original Mortgage holder- CCO Mortgage Corp.
Motion for Summary Judgment ("Motion") at']{ 3, Exh. A. Plaintiff attached a Certificate of
Merger which was recorded in the Office of the Comptroller of Currency, United States
Department of Treasury to their Motion. Motion Exh. A. A legal description of the Subject
Property was attached to the complaint. The requisite Notice of Intention to Foreclose and
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Notice of Homeowners' Emergency Assistance was sent to both Defendants individually
pursuant to the Loan Interest and Protection Law 41 P.S. §§ 101 et seq. ("Act 6") and the
Homeowner's Emergency Mortgage Assistance Act of 1983, 35 P.S. §§ 1680.401c et seq. ("Act
91 "). Compl. at 1 10. Exh. C.
The Complaint alleged that the Mortgage was in default because Defendants failed to
make payments of principal and interest due on April 1, 2012 and any monthly payments
thereafter. Compl. at, 7, Motion for Summary Judgment ("Motion") at 7, Exh. B. Pursuant to
the Complaint, "Plaintiff brings this action to foreclose on the mortgage between Defendants and
itself ... " as "[t]he Mortgage is now in default. .. " Compl. at 113, 7. Therefore, Plaintiff filed a
complaint in mortgage foreclosure seeking $370,328.76 as of March 1, 2013 plus interest.1
Comp I. at 1 7.
A Sheriff's Return filed on March 19, 2013 indicated that the Bucks County Sheriff
attempted to serve Defendants with Plaintiffs Complaint five (5) separate times and received no
response, left notices, and thereafter found the notices were removed. Therefore, on May 9,
2013 Plaintiff filed a Motion for Alternative Service Pursuant to Pennsylvania Rule of Civil
Procedure 430, which we granted on May 30, 2013. Our Order permitted Plaintiff to serve
Defendants with their complaint by posting the premises and via regular and certified mail to
Defendants' last known address- 41 Carol Lane, Richboro, PA 18954.2 The Complaint was
reinstated on June 13, 2013.
On August 12, 2013 Defendants filed an Answer and New Matter. It was admitted that
Defendants were the Record Owners of the Subject Property. Answer at 16. However,
1 The principal balance owed was $339,663.83 with accrued but unpaid interest at $22,736.26 and fees and costs including accumulated late charges, property inspection fees, appraisal fees, hazard insurance, school tax, cost of suit, and attorney's fees totaling $7,928.67. See Compl. at 7 for an itemized list offees. 2 Plaintiff complied with this Order and filed a Certificate of Service on July 5, 2013.
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Defendants denied that they were in default under the terms of the Mortgage, and additionally
alleged that" 'appraisal fees,' 'property inspection' and post-acceleration interest is either not
chargeable and/or not incurred upon information and belief." Ans. at ,r 7. Defendants responded
that both the Mortgage and the Note "speaks for itself in its entirety" and also alleged that this
Court is without jurisdiction "for Plaintiff's non-compliance" in terms of the Act 6/91 Notices.
Ans. at ,r,r 3, 4, 10. Furthermore, in terms of an itemization of amounts due in Paragraph 7 of
Plaintiffs Complaint, Defendants responded that " ... after reasonable investigation, Defendants
are without knowledge or information sufficient to form a belief as to the truth of the averment
and therefore, said averment is expressly denied ... " Ans. at ,r 7.
In their New Matter, Defendants allege that Plaintiff is without standing, is in violation of
Act 6/91, is "barred by laches, estoppel, and its own unclean hands," and is "barred and/ or
limited by its violations of the Truth-In-Lending Act ("TILA") and Real Estate Settlement
Procedures Act ("RESPN'). New Matter at ,r,r 3, 4, 6, 7. Defendants further claim that
Plaintiffs verification is defective and that Plaintiff is in violation of the Home Affordability
Modification Program ("HAMP") as well as the Unfair Trade Practices and Consumer Protection
Law (''UTPCPL") and "such other and further government (federal or state) programs relevant
herein." New Matter at ,r,r 8, 10, 11. Finally, Defendants assert that this Court is without
jurisdiction. New Matter at ,r 5.
On August 16, 2013, Plaintiff filed a reply to Defendant's New Matter, responding
"Denied. Defendants' allegations are conclusions of law devoid of any allegations of fact;
therefore, no response is required under the Pennsylvania Rules of Civil Procedure" to each of
Defendant's allegations. Plaintiff's Reply to New Matter at ,r,r 1- I 1.
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On February 10, 2014 Plaintiff filed a Motion for Summary Judgment ("Motion"). This
Motion was praeciped under Bucks County Rule of Civil Procedure ("B.C.R.C.P.") 208.3(b)
and, thus, submitted for disposition. In its Motion, Plaintiff asserted that "[t]here is no genuine
issue of material fact regarding the Defendants' default." Motion at ,r 12. Attached to this
Motion is the Mortgage and Note, both of which were signed by Defendants on June 19, 2007.
See Motion Exh. A, B. Plaintiff also attached the Certificate of Merger recorded in the Office of
the Comptroller of Currency, United States Department of Treasury, reflecting Plaintiff as the
record holder of both the Mortgage and Note. See Motion Exh. A. Furthermore, a redacted copy
of Defendants' loan history and a letter sent to both Defendants individually notifying them of
their default and of Plaintiffs intent to foreclose are attached. See Motion Exh. B.
Plaintiff attached an Affidavit to the Motion, authored by David P. Salley, an officer and
litigation manager of RBS Citizens, N.A. Successor in Interest to CCO Mortgage Corp. See
Motion Exh. B. Mr. Salley asserted that, based on his personal knowledge and review of
business records kept in the normal course of business, payments are due and owing and as of
October 22, 2013 the total amount due on the Mortgage was $390,059.55, including interest at
$62.81 per day. Motion Exh. B. The amount owed was itemized and listed with specificity in
his affidavit.
In terms of Defendants' Answer, Plaintiff asserted that Defendants offered only a general
denial in response to Plaintiffs averment of default and the amount due and owing on the
mortgage, and, therefore, pursuant to relevant Pennsylvania caselaw, such a denial constitutes an
admission in a mortgage foreclosure action. Motion at ,r,r 12, 13.
Defendants filed a Response in Opposition to Plaintiffs Motion for Summary Judgment
("Response") on March 12, 2014. In this response, Defendants "expressly denied" that
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Defendants ever executed a mortgage or note in favor of Plaintiff. Response at fl 2-3.
Furthermore, in terms of the amount due, Defendants deny that they are liable for "appraisal
fees," "property inspection" and post-acceleration interest. Response at 14. Defendants aver
that Mr. Salley's affidavit constitutes "inadmissible testimonial hearsay predicated upon an
indecipherable 'payment history."? Response at~ 7. Defendants also claim that this court lacks
jurisdiction relating to Plaintiffs "non-compliance" with Act 6/91. Response at 19.
In Defendants' accompanying Memorandum of Law, Defendants first claim that
"Plaintiff must be the negotiated transferee of the subject note as well as record assignee of the
subject mortgage through the chain of loan title (as evidenced by negotiation/allonge and
assignment of mortgage, respectively)." Defendants argue summary judgment was inappropriate
as the note was still in the name of the original lender and Plaintiff failed to attach an assignment
of mortgage. Furthermore, Defendants aver that Mr. Salley' s affidavit was in violation of the
Nanty-Glo rule.
On October 20, 2014, upon consideration of the foregoing, we issued an Order granting
summary judgment for Plaintiffs and entering an in rem judgment against Defendant in the
amount of $390,059.55 plus interest in the amount of $62.81 per day from October 23, 2014.
On November 20, 2014, Defendants filed a Notice of Appeal to the Superior Court.
III. MATTERS COMPLAINED OF ON APPEAL
On November 25, 2014, we Ordered Defendants to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one (21) days. On
December 16, 2014, Defendants filed his l 925(b) statement raising the following claims,
verbatim:
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1) Whether the trial court erred in granting Plaintiff-Appellee's Motion for Summary Judgment per the arguments contrary thereto in Defendants-Appellants' response in opposition?
2) Whether the trial court erred in finding Plaintiff was the pre-judgment record assigned mortgagee and recipient of the negotiated transferred note through the chain of loan title such as to allow summary judgment?
3) Whether the trial court erred in finding Plaintiff has standing/authority to allow summary judgment? 4) Whether the trial court erred in precluding requested discovery, oral argument, and evidentiary hearing?
5) Whether the trial court erred in admitting otherwise objected to as inadmissible claimed "evidence"?
IV. ANALYSIS
The Superior Court's standard of review of a court's grant of summary judgment is well-
established:
[S]ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment "where the right to such judgment is clear and free from all doubt.
On appellate review, then, an appellate court may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion. But the issue as to whether there are no genuine issues as to any material fact presents a question of law, and therefore, on that question our standard of review is de novo. This means we need not defer to the determinations made by the lower tribunals. To the extent that this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010).
1) The Court Correctly Granted Summary Judgment in Favor of Plaintiff
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In regard to Defendants' first claim, the arguments made in Defendants' Response in
Opposition to Plaintiffs Motion for Summary Judgment are three-fold as set forth above and can
be summarized as follows: (1) Plaintiff is not the record holder of the Mortgage and. Note and
failed to attach or reference an Assignment of Mortgage and (2) the affidavit was in violation of
the Nanty-Glo rule, and (3) the merger documents constitute inadmissible hearsay. Because all
of these averments are wholly contained in Defendants' issues 2)- 5), we will address them
below.
2) Plaintiffwas the Pre-JudgmentRecordAssigned Mortgagee and Recipient of the Negotiated TransferredNote
Defendant claims that this court erred in finding Plaintiff was the record assigned
mortgagee and recipient of the Note. There is no dispute that Plaintiff did not produce or
reference an Assignment of Mortgage. Additionally, we recognize that the CCO Mortgage Corp.
is the original Mortgagee and Lender. However, at the time summary judgment was granted in
this case, Title 15 ("Corporations and Unincorporated Associations") Pa. C.S.A. § 1929 ("Effect
of merger or consolidation") was controlling. Therefore, the effect of a merger or consolidation
is as follows:
All the property, real, personal and mixed, and franchises of each of the corporations parties to the merger or consolidation, and all debts due on whatever account to any of them ... shall be deemed to be vested in and shall belong to the surviving or new corporation, as the case may be, without further action, and the title to any real estate, or any interest therein, vested in any of the corporations shall not revert or be in any way impaired by reason of the merger or consolidation. The surviving or new corporation shall thenceforth be responsible for all the liabilities of each of the corporations so merged or consolidated.
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15 Pa.C.S.A. § 1929(b).3 Accord LTV Steel Co., Inc. v. W.C.A.B. (Mozena). 754 A.2d 666. 677
(Pa. 2013) (holding "It is well established law in the Commonwealth that when corporations
merge the surviving corporation succeeds to both the rights and liabilities of the constituent
corporation"). Here, Plaintiff attached a Certificate of Merger that was signed and bore an
official seal by the Comptroller of the Currency with the Treasury Department to the Motion for
Summary Judgment. Motion Exh. A. This Certificate was signed on September 18, 20074 and
indicated that the merger was effective as of September 1, 2007. This official certification
evidences that CCO Mortgage Corp. of Glen Allen, VA (among other distinct corporations) was
merged into Citizens Bank, National Association "with the title RBS Citizens, National
Association." Motion Exh. A. Therefore, in granting summary judgment, we determined that
based on the language of the relevant statute in addition to the directives of caselaw, the merger
resulted in RBS Citizens, N.A.' s assumption of all CCO Mortgage Corp.' s assets and liabilities,
including the Mortgage and Note at issue here. As a result, an Assignment of Mortgage was
unnecessary, as the merger effectively resulted in Plaintiffs assumption of the Mortgage.
Furthermore, Defendants failed to present evidence to the contrary, and simply rested on their
general statements that Plaintiff was not the record holder of the Mortgage and Note.
3) The Trial Court had Jurisdiction to Adjudicate the Instant Litigation
Next, Defendants claim the trial court erred in "finding Plaintiff had standing/authority to
allow summary judgment." We are uncertain and it is unclear as to whether Defendants are
challenging our jurisdiction to entertain this particular lawsuit generally or Plaintiff's lack of
3 We are aware that as of October 22, 2014 (two (2) days after our grant of SummaryJudgment) the General Assembly repealed 15 Pa.C.S.A. 1929 in total. See 2014 Pa. Legis. Serv. Act2014- 172 (H.B. 2234). 4 Defendants' executed the Mortgage and Note on June 19, 2007.
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standing to bring the lawsuit for reasons set forth above.5 Regardless, in terms of the latter, we
have previously established that Plaintiff was the successor in interest to CCO Mortgage Corp.
and, therefore, at the time summary judgment was granted Plaintiff was the holder of the
Mortgage and Note. In addressing the former, we note that our jurisdiction to entertain the
instant action is pursuant to Pennsylvania Rule of Civil Procedure ("Pa.R.C.P.") 1142, which
states that a mortgage foreclosure action "may be brought in and only in a county in which the
land or a part of the land is located." There is no dispute that the Subject Property is located in
Bucks County, PA.
Furthermore, in Defendants' Response to Plaintiffs Motion, Defendants claimed that this
court lacked jurisdiction "relating to Plaintiffs 'non-compliance' with Act 6/91.
Response at ,r 9. This issue of whether the Act 91 notice requirements impose jurisdictional
prerequisites has been previously adjudicated and decided by our Supreme Court in Beneficial
Consumer Discount Co. v. Vukman, 77 A.3d 547 (Pa. 2013). In this case, mortgagee filed a
complaint in mortgage foreclosure against mortgagor, which resulted in a settlement agreement
in which mortgagee received judgment for the accelerated amount due on the mortgage,
however, agreed not to execute on the judgment so long as mortgagor continued making regular
payments. Beneficial, 77 A.3d at 548. Thereafter, mortgagor defaulted on her obligations
pursuant to the settlement agreement and mortgagee filed a praecipe for writ of execution and the
property was sold thereafter. Id. Mortgagor then filed a "Motion to Set Aside Judgment and
5 Based on the foregoing and despite our efforts to address Defendants' claim, we are of the opinion that it is waived as vague pursuant to relevant law. Where a petitioner's Concise Statement pursuant to Pa.R.A.P. l 925(b) is not specific enough for a trial court to identify and address the issue the petitioner wishes to raise on appeal, the trial court may find waiver. Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006). When a court must guess what issues are being appealed, petitioner has not presented enough for meaningful review. Id. When a petitioner fails to identify the issues he pursues on appeal, the court is impeded in its preparation of a legal analysis pertinent to those issues. Id. "In other words, a Concise Statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent ofno Concise Statement at all." Id. (citing Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006)).
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Sheriffs Sale" on the basis that the Act 91 Notice was deficient because it failed to inform
mortgagor of an option available to her as of 2006. Id. The trial court found the notice was
deficient as a result and concluding "this stripped it of subject matter jurisdiction, which cannot
be waived." Id. Mortgagee filed a timely notice of appeal, raising the issue that "even if the
notice was deficient, this fact did not extinguish the trial court's subject matter jurisdiction over
[the] case." Id. at 549. The court reasoned and concluded as follows:
The failure to pay the mortgage according to its terms gave [mortgagee] its cause of action. To act on that cause of action, it was required to give notice under Act 91. As the notice it gave did not meet the requirements of the Act, it was defective and the procedural requirements for enforcement were not met; that defect, however, did not affect the jurisdiction of the court to hear the matter.
Id. at 553. Here, we determined that Plaintiff provided adequate Act 6/91 Notice to Defendants
6 regarding notice of default and their intention to foreclose. See Compl. Exh. C, Motion Exh. B.
Regardless, any failure to provide such notice in no way affects our jurisdiction to hear this
matter and, even so, Defendants do not point to any specific defect or omission in the combined
notice and, therefore, this claim is meritless.
4) The Court Correctly Precluded Discovery, Oral Argument, and Evidentiary Hearings
Defendants question whether this Court's grant of summary judgment was an abuse of
discretion and/or error as a matter oflaw because they did not have an opportunity to engage in
further discovery. However, in their Memorandum of Law in support of their Response in
Opposition to Plaintiffs Motion for Summary Judgment, Defendants "demanded" the deposition
of Plaintiffs affiant. First, it is important to note that the Complaint in Mortgage Foreclosure
was first filed on March 5, 2013 and Defendants had been in default under the terms of the
6 Although the Notices sent to Defendants individually by Plaintiff are entitled "Act 91 Notice," the dictates of Act 91 (specifically 35 P.S. § 1680.403c(b)(l)) provide that a mortgagee shall prepare a notice pursuant to all of the information required by the statute in addition to that required by Act 6 (41 P.S. § 403). All of the information required by both Act 6 and Act 91 are contained therein. See Comp!. Exh. C; Motion Exh. B.
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Mortgage and Note since April 1, 2012. Defendants filed their Answer and New Matter on
August 12, 2013. This Motion was not praeciped for our disposal until April 7, 2014 and we did
not receive it for review until May 6, 2014. It was not until October 20, 2014 that we granted
Plaintiffs Motion for Summary Judgment. Defendants were afforded ample time and
opportunity to conduct discovery to negate Plaintiffs assertions or support any defenses to the
allegations. There is no evidence that Defendants attempted to depose Plaintiffs "affiant," as the
record as it stands before us is devoid of any notice of intention to take such an oral deposition.
Moreover, summary judgment may be granted "whenever there is no genuine issue of material
fact as to a necessary element of the cause of action or defense which could be established by
additional discovery .... " Pa.R.C.P. 1035.2. Thus, discovery does not need to be completed in
order for this Court to rule on Motions for Summary Judgment. See Pa.R.C.P. § 1035.2(1).
In the instant case, although Defendants demanded an evidentiary hearing/oral argument
in the ad damnum clause of their Memorandum of Law in Support of their Opposition to
Plaintiffs Motion for Summary Judgment, neither party requested oral argument via praecipe as
required. Bucks County Rule of Civil Procedure ("B.C.R.C.P) 208.3(b)(6) states that "[ujnless
oral argument has been requested by the moving party in the praecipe, or by any other party
within the IO-day period specified in subsection (2) hereof, the matter shall be disposed of by
written order .... " Defendants did not request oral argument via praecipe when they filed their
Response. Although Defendants may have desired oral argument, Defendants' request failed to
satisfy the praecipe requirement of B.C.R.C.P. 208.3(b)(6). Therefore, this Court was not
required to provide oral argument and was permitted to dispose of the matter by written order.
5) The TrialCourtCorrectlyConsidered Plainriff's Affidavit, Defendant's Loan History Documents, and the MergerDocuments
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Defendants finally claim that this court erred in "admit[ing]" inadmissible "claimed
'evidence.'?' In addressing this issue, we assume that Defendant is again relying on the specific
evidence attached to Plaintiffs Motion for Summary Judgment as set forth in their responsive
Memorandum of Law including the affidavit of Mr. Smalley, the payment history, and the
merger documents. We will address the admissibility of each in turn, but will first set forth the
dictates of Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932).
The Nanty-Glo rule governs the use of oral testimony (either through affidavits or
depositions) to determine the outcome of a case in motions practice. The Rule dictates that
" ... the party moving for summary judgment may not rely solely upon its own testimonial
affidavits or depositions, or those of its witnesses, to establish the non-existence of genuine
issues of material fact." Dudley v. USX Corp., 606 A.2d 916, 918 (Pa. Super. 1992) (emphasis
added). The Rule, as explicated by the Pennsylvania Superior Court:
The function of the summary judgment proceedings is to avoid a useless trial but is not, and cannot, be used to provide for trial by affidavits or trial by depositions. That trial by testimonial affidavit is prohibited cannot be emphasized too strongly. In considering a motion for summary judgment, the lower court must examine the whole record, including the pleadings, any depositions, any answers to interrogatories, admissions of record, if any, and any affidavits filed by the parties. From this thorough examination the lower court will determine the question of whether there is a genuine issue as to any material fact. On this critical question, the party who brought the motion has the burden of proving that no genuine issue of fact exists. All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment.
In determining the existence or non-existence of a genuine issue of a material fact, courts are bound to adhere to the rule of [Nanty-Glo] which holds that a court may not summarily enter a judgment where the evidence depends upon oral testimony.
DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 595 (Pa. Super. 2013).
Three (3) factors determine the applicability of the Nanty-Glo Rule:
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Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the [fact-finder] by resolving any material issues of fact. It is only when the third stage is reached that Nanty-Glo comes into play.
DeAnnitt v. New York Life Ins. Co., 73 A.3d at 594-95 citing Dudley v. USX Corp., 606 A.2d
at 920. Therefore, in order for the Nanty-Glo Rule to apply in the instant case, there must exist a
genuine discrepancy or dispute as to a material fact.
Applying the Nanty-Glo analysis to the instant case, Plaintiff has shown without doubt,
by way of the pleadings and by way of Pa.R.C.P. 1029 ("Denials. Effect of Failure to Deny"),
that Defendants are in default of the Mortgage. Defendants' loan history records, obtained by
Plaintiff in the regular course of business, do not trigger the applicability of the Nanty-Glo Rule
because this evidence is not oral testimony and is not dependent upon the credibility and
demeanor of any witnesses.
Most importantly, in terms of the affidavit and loan history, Defendants have not
provided any evidence to refute Plaintiffs accounting of damages. There is no discrepancy in
the amounts due and owing on the Mortgage. Furthermore, Defendants have not provided any
evidence to refute Mr. Smalley's computation of damages in the affidavit, nor have they refuted
the accuracy of the loan history records, and only go so far as to conclude they are
"indecipherable."
Addressing the fees that Defendants deny they are liable for in their Response to
Plaintiffs Motion, including "appraisal fees," "property inspection" and post-acceleration
interest, these fees are specifically provided for in paragraph 14 of the Mortgage. See Compl.
Exh. A, Motion Exh. A. Furthermore, the Note, which was signed by Defendants, clearly states
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that the interest rate is 6.750% annually upon the unpaid principal. The Note explicitly provides
that this is the interest rate to be employed both before and after any default by Defendants.
It is obvious that Plaintiff calculated the interest and fees based upon the information
provided in the Mortgage and the Note, both of which were contractually agreed to by
Defendants. Based upon the clearly delineated interest rate, amount of the monthly payments,
late charges (five percent (5.000%) of the overdue payment) and the amount of unpaid principal
on the loan, Defendants were fully capable of determining the amount of interest and late charges
that accrued from the date of default to the filing of the Complaint. Because these documents
speak for themselves in terms of the calculation of the interest, principal, and fees owed, Plaintiff
is not required to provide a step-by-step computation.
Furthermore, in terms of an itemization of amounts due in Paragraph 7 of Plaintiffs
Complaint, Defendants responded that " ... after reasonable investigation, Defendants are without
knowledge or information sufficient to form a belief as to the truth of the averment and therefore,
said averment is expressly denied ... " Ans. at ,r 7. Defendants also provided that the Mortgage
and the Note are documents that "speak for [themselves] in [their] entirety" or "expressly
denied" their existence. Ans. at ,r,r 3, 4; Response at ilil 2-3.
When it is clear that a party must know whether a particular allegation is true or false,
reliance on Pennsylvania Rule of Civil Procedure 1029(c) does not excuse a party's failure to
admit or deny the allegation. Cercone v. Cercone, 386 A.2d 1, 4 (Pa. Super. 1978); see also
Pa.R.C.P 1029(c). Further, "in mortgage foreclosure actions, general denials by mortgagors that
they are without information sufficient to form a belief as to the truth of averments as to the
principal and interest owing must be considered an admission of those facts." First Wisconsin
Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. Ct. 1995). Indeed, to date Defendant is
Page 14 of 15 Circulated 09/03/2015 01:32 PM
"the only part[y] who would have sufficient knowledge on which to base a specific
denial." New York Guardian Mortgage Coq,. v. Dietzel. 524 A.2d 951, 952 (Pa. Super. Ct.
1987). Thus, in the absence of any evidence to refute Defendants' averments, Defendants'
general denials to Paragraph 7 of Plaintiffs Complaint (setting forth an itemized list of costs
associated with default of this Mortgage) contained in his Answer constitutes an admission. See
Strausser, 653 A.2d at 692.
Finally, the Merger documents constitute an official record and are thus admissible
pursuant to 42 Pa.C.S.A. § 5328(a). Section 5328(a) provides that the prerequisite for the
admission of documents located outside the Commonwealth is that it be evidenced by a "copy
attested by the officer having the legal custody of the record, or by his deputy, and accompanied
by a certificate that the officer has the custody" of the document. Here, Plaintiff attached a
sealed Certificate from the Comptroller of the Currency evidencing the merger. See Compl.
Exh. A, Motion Exh. A.
Ultimately, Defendants' Answer and New Matter and Response to Plaintiffs Motion for
Summary Judgment failed to create a genuine issue of material fact and, accordingly, Plaintiff is
entitled to judgment as a matter of law.
V. CONCLUSION
The foregoing represents this Court's opinion regarding Defendants' appeal from the
Court's granting of Summary Judgment for Plaintiff.
BY THE COURT:
RULO,JUDGE
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RBS CITIZENS VS. ERIC BRODIE No. 2013-01556 3316 EDA 2014
Copies Sent To:
Matthew B. Weisberg, Esquire WEISBERG LAW, PC 7 South Morton Avenue Morton, PA 19070-1707 Counselfor Appellant
Sean P. Mays, Esquire LAW OFFICES OF GREGORY JA V ARD IAN 1310 Industrial Boulevard, Suite 101 Southampton, PA 18966 Counsel for Appellee
Janette Livezey, Managing Editor LAW REPORTER Bucks County Bar Association 135 East State Street Doylestown, PA 18901
Barbara A. Morris, Law Library BUCKS COUNTY COURTHOUSE 55 East Court Street, 1st Floor Doylestown, PA 18901