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Home My WebLink About98-0894 civilCONTIMORTGAGE CORPORATION, assignee of KEYSTONE STATE MORTGAGE CORPORATION, Plaintiff V , LINDA MARTIN, single, and JOSEPH MARTIN, single, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · · · : · · NO. 98-0894 CIVIL TERM : · · IN RE: PLAINTI__FF' S MOTION FOR SUMMARY JUDGMENT AGAINST LINDA MARTIN BEFORE I{OFFER_R_z_ P.J-- OLER AND GUIDO, JJ. ORDER OF COURT AND NOW, this /&~/~ day of JUNE, 1999, in consideration of Plaintiff's Motion for Summary Judgment and after argument thereon, it is hereby Ordered, Adjudged and Decreed that said Motion is granted and judgment in mortgage foreclosure is hereby entered for the Plaintiff and against Defendant Linda Martin for the amount due on the mortgage as of February 28, 1998, itemized as follows- Unpaid principal balance $41,646.93 Interest, 7/30/97 through 2/28/98 at 11.95% 2,904.27 Unpaid late charges Escrow deficit Attorney's fee at 5% TOTAL DUE 255.16 2,982.44 2,082.35 $49,871.15 It is further Ordered that this amount may be increased due to additional disbursements by the Plaintiff for the payment of taxes, assessments, maintenance charges, insurance premiums or costs incurred for the protection of the mortgaged premises or the lien of the mortgage, or expenses incurred by the Plaintiff by reason of the default under the mortgage, including attorney's fees, by petition with notice to all parties. By the Edward E. Guido, J. Louis P. Vitti, Esquire For the Plaintiff Linda Mart in, Pro Se Joseph Mart in, Pro Se -sld CONTIMORTGAGE CORPORATION, assignee of KEYSTONE STATE MORTGAGE CORPORATION, Plaintiff V . LINDA MARTIN, single, and JOSEPH MARTIN, single, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA : · · · · NO. 98-0894 CIVIL TERM : · · IN RE- PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AGAINST LINDA MARTIN BEFORE HOFFER, P.J. , OLER AND GUIDO, JJ. OPINION AND ORDER OF COURT Plaintiff Mortgagee instituted this action in Mortgage Foreclosure by complaint filed on February 27, 1998. Defendant Linda Martin, appearing pro-se, filed an answer.~ On June 19, 1998 Plaintiff filed a Motion for Summary Judgment against Defendant Linda Martin as well as an affidavit in support thereof. Defendant Linda Martin has not filed a response to Plaintiff's Motion for Summary Judgment as required by Pa.R.C.P. 1035.3. On April 22, 1999 Plaintiff's counsel listed the motion for Argument Court. Plaintiff filed a brief. Defendant Linda Martin did not. The matter was argued before us on May 26, 1999 and is now ready for disposition.2 ~Service of the Complaint has not yet been made upon Defendant Joseph Mart in. 2Plaintiff was represented by Counsel at the argument. Defendant Linda Martin appeared on her own behalf. NO. 98-0894 CIVIL TERM STATEMENT OF FACTS The record in this matter consists of the Complaint, the answer of Defendant Linda Martin, Plaintiff's Motion for Summary Judgment and an affidavit of an employee of Plaintiff who is custodian of its records relatin~ to mortgages. In her answer, Defendant Linda Martin admitted all of the alle~ations of the Complaint except for paragraph 8 which alleged- 8. In accordance with the appropriate Pennsylvania Acts of Assembly and the Pennsylvania Rules of Civil Procedure, the mortgagor(s) has been advised in writing of the mortga9ee's intention to foreclose. The appropriate time period has elapsed since the Notice of Intention to Foreclose has been served upon the mortgagor(s). The Defendant's Answer responded to paragraph 8 of the Complaint as follows- 8. Denied. It is specifically denied Linda Martin ever was advised in writing of the mortgagee's intention to foreclose. Further, Defendant notes that Plaintiff's Complaint is defective as to verification of facts, including the fact of notice, inasmuch as the verification is by counsel and the signature of Plaintiff could have been obtained within any time limitation to be imposed on the filing of the Complaint. Plaintiff's affidavit in support of its Motion for Summary Judgment included averments that notice of intention to foreclose as well as the "Act 91" Notice~ were mailed to the Defendants as required on November 5, 1997. 335 P.S.§ 1680.403c. NO. 98-0894 CIVIL TERM DISCUSSION Pennsylvania Rule of Civil Procedure 1035.2 provides that a party may move for summary jud~tment as a matter of law "whenever there is no ~enuine issue of any material fact as to a necessary element of the cause of action .... ,,,t Pennsylvania Rule of Civil Procedure 1035.3 (a) requires the adverse party to file a response to the summary judgment motion within thirty days after service,s Summary judgment may be entered against a party who does not respond. 6 Defendant Linda Martin admitted all of the allegations in the Complaint, except paragraph eight (8). She raised only two issues in her answer, i.e., 1) The Complaint was not properly verified; and 2) She was not advised in writing of the mortgagee's 4Pa.R.C.P. 1035.2 (1) . ~Pa.R.C.P. 1035.3 (a) provide as follows. (a) The adverse party may not rest upon the mere alle~ations 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 arisin~ from evidence in the record controvertin~ 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, or (2) evidence in the record establishin~ the facts essential to the cause of action or defense which the motion cites as not havin~ been produced. 6Pa.R.C.P. 1035.3 (d) . NO. 98-0894 CIVIL TERM intention to foreclose. After a thorough review of the record and the applicable law we are satisfied that no genuine issue of material fact exists. The Complaint was verified by Plaintiff's attorney who averred that the verification was made pursuant to Pa.R.C.P. 1024(c) (2) which provides as follows- The verification shall be made by one or more of the parties filin~ the pleading unless all the parties ... (2) are outside the jurisdiction of the Court and the verification of more of them can be obtained within the time allowed for the filin~ of the pleading. Defendant argues that the verification was improper because the verification of a party could have been "obtained within the time allowed for the filing of the pleading." However, this alleged failure of the complaint to conform to a rule of court should have been raised by preliminary objection. See Pa.R.C.P. 1028(a) (2). Failure to do so operates as a waiver of that defense. Roberts v. Estate of Pursley, 700 A.2d 475 (Pa. Super. 1997) .~ Defendant Linda Martin cannot rely on her answer which questioned the appropriateness of the notices in order to avoid the entry of summary judgment. This is especially true in light of Plaintiff's affidavit in support of its Motion for Summary Judgment. The affidavit indicates that all notices were sent as ~Furthermore, insofar as Defendant has admitted virtually all of the facts alleged in the complaint, she cannot be logically argue that the improper verification is sufficient to preclude summary judgment. NO. 98-0894 CIVIL TERM required by law. In addition, true and correct copies of the notices were attached to the affidavit. In Washinqton Federal Savinqs & Loan Assoc. v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986) the court held- [P]arties seeking to avoid the entry of summary judgment against them may not rest upon the averments contained in their pleadings. On the contrary, they are required to show, by depositions, answers to interrogatories, admissions or affidavits, that there is a genuine issue for trial. The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings. The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those alle~ations in the pleadings that are uncontroverted. Id. at 289 515 A.2d 980 at 981 (citations omitted). _ Applying the above rationale to the case before us, we are compelled to grant Plaintiff's Motion for Summary Judgment. Therefore, we will enter judc~ment in mortc~a~e foreclosure in favor of Plaintiff and against Defendant Linda Martin in the amount of $49,871.15 as of February 28, 1998 ORDER OF COURT AND NOW, this 16TH day of JUNE, 1999, in consideration of Plaintiff's Motion for Summary Judgment and after argument thereon', it is hereby Ordered, Adjudged and Decreed that said 8Paragraph 9 of the Complaint alleges and paragraph 9 of the Answer acknowledges that $49,871.15 was due on the mortgage as of February 28, 1998, including unpaid interest and expenses. It is also alleged and acknowledged that additional interest and expenses have continued to accrue. NO. 98-0894 CIVIL TERM Motion is granted and judgment in mortgage foreclosure is hereby entered for the Plaintiff and a~tainst Defendant Linda Martin for the amount due on the mortgage as of February 28, 1998 itemized as follows- Unpaid principal balance $41,646.93 Interest, 7/30/97 through 2/28/98 at 11.95% 2,904.27 Unpaid late charges Escrow deficit 255.16 2,982.44 Attorney's fee at 5% 2,082.35 TOTAL DUE $49,871.15 It is further Ordered that this amount may be increased due to additional disbursements by the Plaintiff for the payment of taxes, assessments, maintenance charges, insurance premiums or costs incurred for the protection of the mort~a~ted premises or the lien of the mortgage, or expenses incurred by the Plaintiff by reason of the default under the mortgage, including attorney's fees, by petition with notice to all parties. By the Court, /s/ Edward E. Gui do Edward E. Guido, J. Louis P. Vitti, Esquire Linda Mart in, Pro Se Joseph Mart in, Pro Se -sld