HomeMy WebLinkAbout2016-5313
PHH MORTGAGE CORPORATION,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS
KEITH B. HOSTETTER and KRISTIN OF THE NINTH JUDICIAL DISTRICT
M. HOSTETTER,
Defendants2016-05313 CIVIL TERM
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925(a)
PLACEY, C.P.J. 3 AUGUST 2018
PROCEDURAL HISTORY
On September 22, 2016, Plaintiffs filed a mortgage foreclosure Complaint
seeking in rem judgement for the mortgage balance, interest, and fees claiming
Defendants defaulted under the mortgage and note by failing to make payments due 1
March 2016 and each month thereafter. On December 2, 2016, pro se Co-defendant
Keith Hostetter, filed “Defendant Keith Hostetter’s Answer to Plaintiff’s Complaint,” and
on December 13, 2016, counsel filed Defendants’ Answer with New Matter.
Subsequently Plaintiff filed a Reply to Defendant’s New Matter and Motion for Summary
Judgment, and Oral Argument was heard on February 9, 2018.
Plaintiff’s Motion for Summary Judgment was granted on 22 May, 2018.
Defendants timely filed Notice of Appeal on June 2, 2018, and thereafter filed a Concise
Statement of Matters Complained of on Appeal on July 16, 2018. In the Concise
Statement of Matters Complained of on Appeal, Defendants lists six (6) separate errors
by the court. Succinctly, they are:
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1. The court erred in granting Plaintiffs Motion for Summary Judgment?
2. The court erred in finding that Plaintiff had standing and/or authority to
foreclose by virtue of a negotiated note and mortgage through the chain
of loan title?
3. The court erred in holding Defendants’ discovery responses and the
pleadings constitute general admissions?
4. The court erred in admitting Plaintiff’s testimonial affidavit over
Defendants’ objection?
5. The court erred in denying Defendants’ request for “Plaintiff’s Motion’s
Affiant’s deposition”?
6. The court erred in finding Plaintiff produced credible, uncontested, and
admissible evidence of Defendants’ delinquency?
This Opinion is in support of the Order granting Summary Judgment.
STATEMENT OF FACTS
The facts germane to the appeal from the May 22, 2018, Order granting
Summary Judgment are as follows:
1. Paragraph 3 of Complaint avers that on June 29, 2009, Defendants
made, executed, and delivered a mortgage described to Mortgage
Electronic Registration System (MERS), as nominee for ERA Mortgage,
and as recorded by the Cumberland County Recorder of Deeds in
Mortgage Instrument (Instrument) No. 200923431; the mortgage was
assigned to Plaintiff and recorded on February 14, 2014, as Instrument
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No. 201403306; and subsequently modified by agreement recorded
May 26, 2015, as Instrument 201512313. These documents are public
records.
2. Paragraph 5 of Complaint avers said mortgage is in default because
monthly payments dues, March 1, 2016, and each month thereafter are
unpaid, and by terms of the mortgage, the entire principal balance and
interest are immediately collectable.
3. Paragraph 6 of Complaint itemizes the amount in default including the
principal balance, interest, late charges, and fees totaling - at the time-
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$151,851.84.
4. Co-defendant Keith Hostetter’s pro se Answer of December 2, 2016
admits to Paragraph 3 of Complaint.
5. Co-defendant Keith Hostetter’s Answer denies paragraph 5 of
Complaint, demands strict proof, and further responds, “The
Defendants have divorced and \[Co-d\]efendant Kristin Hostetter is
responsible for making all payments, as per the parties \[sic\] marriage
settlement agreement, which provides that she will indemnify him.”
However, there is no attachment in support of this claim.
6. No other defenses are raised.
7. A second response, Defendants’ Answer with New Matter, filed
December 13, 2016, denies paragraph 3 of Complaint, and “expressly
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As of July 2, 2018, the reassessed Judgment total is $166,554.70.
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denie\[s\] that Plaintiffs executed a mortgage in favor of \[MERS\], et al.,
and strict proof is demanded.”
8. Defendants’ Answer with New Matter generally denies Complaint’s
averments in paragraphs 5 and 6, claiming that after reasonable
investigation Defendants are without sufficient information to form a
belief as to the truth of the averments.
9. Defendants’ New Matter, paragraph 2, baldly avers that Plaintiff does
not have “standing and/or authority to foreclose by virtue of a properly
negotiated note and recorded assignment of mortgage to the chain of
title.” However, Defendants fail to plead any facts or evidence to
support their averment.
10. Plaintiff’s Reply to the New Matter establishes Plaintiff has standing to
foreclose by virtue of (1) Assignment in Instrument 201403306,
recorded on 14 February 2014; (2) Modification in Instrument
201512313, recorded on May 26, 2015; and (3) Plaintiff is in possession
of the Promissory Note (Note) and therefore has authority to enforce the
terms of the Note.
11. Attached to Plaintiff’s Motion for Summary Judgment are Recorder of
Deeds copies of the 2009 executed mortgage, 2014 executed
assignment of mortgage to Plaintiff, 2015 executed modification, and
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Note endorsed to Plaintiff.
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Plaintiff’s Motion for Summary Judgment, exhibits A, A2, A3, and A1, respectively.
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12. The mortgage expressly states, “MERS (as nominee for Lender and
Lender’s successors and assigns) has the right to exercise any or all of
those interests\[.\]”
13. Plaintiff’s Motion for Summary Judgment also includes a copy of
Defendants’ loan history indicating the last payment applied to
Defendants’ loan was on March 23, 2016, for the delinquent February 1,
2016 payment as evidence of Defendants’ default.
14. Defendants’ Response In Opposition to Plaintiff’s Motion for Summary
Judgment includes an attached Affidavit signed by Co-defendant Kristin
Hostetter and attachments of nearly indecipherable financial statements
showing Plaintiff refusing payments; Defendants’ exhibit Z is merely a
hand-drawn smiley face.
DISCUSSION
Statement of Law: Summary judgment is appropriate “whenever there is no
genuine issue of any material fact as to a necessary element of the cause of action or
defense\[.\]” Pa.R.C.P. 1035.2(1). Rule No. 1141 of the Pennsylvania Rules of Civil
Procedure provides this cause of action rule applies to actions of mortgage foreclosure.
Rule 1035.3 states, in pertinent part:
(a) \[T\]he adverse party may not rest upon the mere allegations or
denials of the pleadings but must file a response within thirty days after
service of the motion identifying
(1) one or more issues of fact arising from evidence in the record
controverting the evidence cited in support of the motion or from a
challenge to the credibility of one or more witnesses testifying in
support of the motion\[.\]
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Pa.R.C.P. 1035.3. “Failure of a non-moving party to adduce sufficient evidence
on an issue essential to his case and on which it bears the burden of proof . . .
establishes the entitlement of the moving party to judgment as a matter of law.”
Murphy v. Duquesne University of the Holy Ghost, 777 A.2d 418, 429 (Pa.
2001)(citation omitted, ellipsis in original).
The execution and assignment of the mortgage, the recording information and
the legal description of the Property are matters of public record and may not be denied
for lack of knowledge. See Strank v. Mercy Hospital of Johnstown, 102 A.2d 170,
171–72 (Pa.1954) (“An averment of lack of knowledge is not a sufficient denial under
Pa.R.C.P. No. 1029(c) when it is manifest from the fact averred in the pleading that the
means of proof are matters of public record.”), see also Goodrich Amram 2d, §
1029(c):4.
The holder of a mortgage note has the right, upon default, to bring a foreclosure
action. Cunningham v. McWilliams, 714 A.2d 1054, 1056–57 (Pa. Super.1998). The
holder of a mortgage is entitled to summary judgment if the mortgagor admits that the
mortgage is in default, the mortgagor has failed to pay on the obligation, and the
recorded mortgage is in the specified amount. Id. at 1057.
General denials constitute admissions where specific denials are required. See
Pa.R.C.P. No. 1029(b). Furthermore, “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 \[on the mortgage\] must be
considered an admission of those facts.” Bank of America, N.A. v. Gibson, 102 A.3d
462, 467 (Pa. Super. 2014) (citing First Wisconsin Trust Co. v. Strausser, 653 A.2d
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688, 692 (Pa. Super. 1995)); see Pa.R.C.P. No. 1029(c) Note. Additionally, where a
mortgage grants MERS, as nominee, the right to exercise “any and all” interests
incidental to legal title, “\[t\]hose interests include the ability to assign the mortgage.”
Gibson 102 A.3d at 466.
Finally, the Nanty–Glo rule prohibits entry of summary judgment based on the
moving party’s affidavit that was inadmissible hearsay. See Sherman v. Franklin
Regional Medical Center, 660 A.2d 1370, 1372 (Pa. Super. 1995). “An exception to
this rule exists, however, where the moving party supports the motion by using
admissions of the opposing party\[.\]” Id., see also Gibson, 102 A.3d at 466.
Application of Law to Facts: Plaintiffs have demonstrated the proper assignment
of the mortgage through chain of title and, therefore, have standing to foreclose.
Through Defendants’ general denials and improper claims of lack of knowledge, they
have admitted the material allegations of the complaint. Defendants also admitted that
they have defaulted on the payments due under the mortgage, and that they have failed
to pay interest on their obligation. Defendants’ exhibits show payments made to Plaintiff
until the default. Only after Plaintiff began foreclosure proceedings did Defendants
contend that the mortgagee to whom they had been making payments was operating
under an improperly assigned mortgage.
Insofar as Defendants contend that Plaintiff’s affidavit constitutes hearsay, the
properly attached loan history documents are records of regularly conducted activity, or
business records, and would be admissible at trial with proper foundation. See Pa.R.E.
803(6); 42 Pa.C.S. § 6108.
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Accordingly, judgment in favor of Plaintiff’s Motion for Summary Judgment is
appropriate since no material fact remains in issue as to any element in the mortgage
foreclosure action, and, therefore, the court’s Order granting Plaintiff summary judgment
should be affirmed.
By the Court,
________________________
Thomas A. Placey C.P.J.
Distribution:
Mario J. Hanyon, Esq.
Matthew Weisberg, Esq.
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