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Home My WebLink About99-3165 civilBANKERS TRUST COMPANY OF" IN Ti i[-i ~?~i.)[ 'I~'i' OF COMMON PLEAS OF CALIFORNIA, N.A., · C'JMBi'''~;' ~ N[) COUNTY PENNSYLVANIA Plaintiff ' Vo E. JADE JANESKO, Mortgagor MICHAEL J. JANESKO, Defendant · 99-3165 CIVIL.. 'i'ER.N-i : : IN RE: PLAINTIFF'S MOTION FOR SUMMAR?' JUDGMENT SS,_ (_(_;[, lDO. JJ BEFORE HOFFE'R, P.J., HE ~'; ...... · AND NOW, this OPINION AND O~R_'DER OF COkiRT //n/'('~ day of JANUARY, 2000. in consideration of Plaintiff's motion for summary judgment and aftcr 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 Dcfendants E. Jade Janesko and Michael Janesko for the amount due on the mortgage as of August 14, 1999, itemized as follows' Unpaid principal balance Interest, 12-01-98 through 8-14-99 at 11.9% Title report Unpaid late charges Court Costs EscroW deficit Attorney's fee at 5% TOTAL DUE $84,075.88 7,098.34 250.00 189.~0 280.00 1014.60 4203.79 $97,112.41 i~ ~.~; ~'-':;: ~"~ ..... O~dered that this amount may be increased due to additional disbursements ~,.,' :.~c i'i nt~'lT ~'~,,- ti~c ~ a3 ~ent 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 Plaintiffby reason of the default under the mortgaze.., including,= court costs and SherifFs costs, by petition with notice to all parties. By the Edward E. Guido, J. Mark J. Udren, Esquire For the Plaintiff Benjamin T. Warner, Esquire For the Defendants 'sld BANKEI~,~:'.' i'l:::i~.j~4'i COMPANY OF' IN THE COURT OF COMMON PLEAS OF Mo E. JADE JANES'KO, rv!or:g~tgor MICHAEL J. JANESKO, · CUMBERLAND COUNTY, PENNSYLVANIA : : : : · 99-3165 CIVIL TERM : : : IN RE: PLAINT'iFF'S MOTION FOR $[JMMARY JUDGMENT I.~!-!:~ F': )RE ItOF.FER, P.J., HESS, GUIDO. JJ. OPINION AND ORDER OF COURT Plaintiff mortgagee instituted this action in mortgage foreclosure by complaint filed on May 25, 1999. Defendant filed an answer with new matter on July 29, 1999. On August 27, 1999, Plaintiff filed a motion for summary judgement alleging that there are no genuine issues of material fact. Defendants did not file a response to that motion. The matter was subsequently listed for argument by Plaintiff's counsel. Both parties, through counsel, filed briefs and appeared before this Court to argue their respective positions. For the reasons hereinafter set forth, Plaintiff's motion for summary judgment will be granted. The record in this case consists of the pleadings, which include the complaint, Defendants' answer with ne~v matter and Plaintiff's reply thereto. The record also includes an affidavit of PlaintiWs records custodian which sets forth the payment history 1 on the mortgage. See Pa. R.C.P. 1035.1. 99-3165 CIVIL TERM In their answer to the complaint Defendants admitted virtually all of the allegations except one. They denied that the mortgage was in default. They specifically averred that all of the payments had been made on the mortgage through the month of June 1999. However, the payment history attached to Plaintiff's affidavit in support of its motion for summary judgment establishes that no payments have been made on the mortgage since January 1, 1999.2 The affidavit further stated that the following sums were due as of August 14, 1999: Principal of debt due and unpaid Interest at 11.99% from 12-1-98 to 8-14-99 (the per diem interest accruing on this debt is $27.62 and that sum should be added each day after 8-14-99 Title Report Court Costs (anticipated, excluding SherifFs Sale costs) Escrow Overdraft (The monthly escrow on this. account is $112.73 and that sum should be added on the first of each month after 8-14-99 Attorneys Fees (anticipated and actual to 5% of principal) $84,075.88 7,098.34 250.00 280.00 189.80 4,203.79 TOTAL $97,112.413 2 See affidavit of Wanda Collier, Assistant Vice President of EMC Mortgage Corporation. 3 See affidavit of Wanda Collier, Assistant Vice President of EMC Mortgage Corporation. 99-3165 CIVIL TERM DISCUSSION Pennsylvania Rule of Civil procedure 1035.2 provides that a party may move for summary judgment as a matter of law "whenever there is no genuine issue of any material fact as to a necessary element of the cause of action ... ,,4 Pennsylvania Rule of Civil Procedure 1035.3 (a) requires the adverse party to file a response to the summary jud[2ment motion within thirty days after service.5 Summary judgment may be entered against a party who does not respond.6 The only material issue of fact raised in the pleadings was the payment status of the m. ortgage. Plaintiff averred that no payments had been made since January of 1999. Defendants averred that the payments were up to date. Plaintiffs have come forward with evidence to establish the truth of its averments. The Defendants did not produce any such evidence in support of their averments. In Washington Federal Savings & 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 4 Pa.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 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, or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced. 6 Pa.R.C.P. 1035.3(d). 99-3165 CIVIL TERM motion for summary judgment and only those allegations in thc pleadi:~_:s ! ~: are uncontroverted. Id. at 289, 515 A.2d 980 at 981 (citations omitted). Applying the above rationale to the case before us, we are cotnpelic.'c! t,, ~r~t~t Plaintiff's motion for summary judgment.? Therefore, we will enter judgment in mortgage foreclosure in favor of Plaintiff and against Defendants in the amount of $97,112.41, effective August 14, 1999. ORDER OF COURT AND NOW, this 14TM day of JANUARY, 2000, 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 judgement in mortgage foreclosure is hereby entered for the Plaintiff and against Defendants E. Jade Janesko and Michael Janesko fo:' the amount due on the mortgage as of August 14, 1999, itemized as follows' Unpaid principal balance $84,075.88 Interest, 12-01-98 through 8-14-99 at 11.9% 7,098.34 Title report 250.00 Unpaid late charges 189.80 Court Costs 280.00 Escrow deficit 1014.60 Attorney's fee at 5% 4203.79 TOTAL DUE $97,112.41 ? If they had made the payments as averred it would have been simple enough to produce cancelled checks, money orders or receipts. They have not done so. We are, therefore, convinced that their answer was filed merely to delay the inevitable. 99-3165 CIVIL TERM 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 lion mortgage, or expenses incurred by the Plain{iff by reason of the default under the mortgage including court costs and Sheriff's costs, by petition with notice to all parties. By the Court, /s/Edward E. Guido Edward E. Guido, J. Mark J. Udren, Esquire For the Plaintiff Benjamin T. Warner, Esquire For the Defendant :sld