HomeMy WebLinkAbout96-2967 CivilBARNETT MORTGAGE CO.,
Plaintiff
Vo
BARRY K. STABLEIN,
Defendant
· IN THE COURT OF COMMON PLEAS OF
· CUMBERLAND COUNTY, PENNSYLVANIA
· CIVIL ACTION -- LAW
· No. 96-2967 CIVIL TERM
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this 30th day of March, 1999, upon consideration of Plaintiff's motion
for summary judgment, and for the reasons stated in the accompanying opinion, Plaintiff's
motion for summary judgment is granted.
Jill M. Wineka, Esq.
Leon P. Hailer, Esq.
Purcell, Krug &Haller
1719 North Front Street
Harrisburg, PA 17102-2392
Attorneys for Plaintiff
Michael L. Bangs, Esq.
302 South 18th Street
Camp Hill, PA 17011
Attorney for Defendant
BY THE COURT,
Wesley O1 r~., J.
BARNETT MORTGAGE CO.,
Plaintiff
Vo
BARRY K. STABLEIN,
Defendant
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CIVIL ACTION -- LAW
: No. 96-2967 CIVIL TERM
IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
BEFORE HESS and OLER, JJ.
OPINION and ORDER OF COURT
OLER, J., March 30, 1999.
In this mortgage foreclosure action, Plaintiff mortgagee has filed a motion for
summary judgment against Defendant mortgagor. Defendant opposes the motion on the
grounds that (1) "he does not possess information regarding the specific amounts or other
charges as alleged by Plaintiff,''~ (2) "Plaintiff did not document notice of the 'Act 91' Notice
with a certificate of mailing nor has Plaintiff suggested a certificate of mailing was filed,''2
and (3) "Defendant has attempted to effect repayment or reinstatement of the subject
mortgage. ,,3
This matter was submitted to the court on briefs at the argument court held March 3,
1999. For the reasons stated in this opinion, Plaintiff's motion for summary judgment will
be granted.
STATEMENT OF FACTS
The record in the present case consists of a complaint, an answer with new matter, a
reply to new matter, Plaintiff's motion for summary judgment, and an affidavit of an officer
I Defendant's Brief in Response to Plaintiff's Motion for Summary Judgment, at 3.
2 Id.,at4.
3 Id.,at4.
of the lending institution. In addition, an answer to the motion for summary judgment and
an affidavit were submitted by Defendant to the Cumberland County Court Administrator.4
Plaintiff's complaint, filed May 28, 1996, alleged that Plaintiff Barnett Mortgage
Company was the assignee of a $76,000.00 mortgage on property at 612 York Circle,
Mechanicsburg Borough, Cumberland County, Pennsylvania? Defendant, Barry K. Stablein,
was identified as the mortgagor of the property, residing at 224 Brian Road, Enola,
Cumberland County, Pennsylvania.6
The complaint averred that the mortgage was in default due to the absence of any
payments on the underlying debt and associated charges since November 1, 1995.7 A copy
of the notice allegedly mailed to Defendant pursuant to the Homeowners' Emergency
Mortgage Assistance Acta on January 11, 1996, was attached to the complaint.9 This "Act
91" notice advised of the procedure for the mortgagor's meeting, within 30 days, with a
representative of the lender or a consumer credit counseling agency for the purpose of
initiating a resolution of the foreclosure issue, inter alia. J0
As of May 16, 1996, according to the complaint, the amount due under the mortgage
4 These were submitted to the Court Administrator with Defendant's Brief in
Response to Plaintiff's Motion for Summary Judgment.
s Plaintiff's complaint, paragraphs 1, 4.
6 Plaintiff's complaint, paragraphs 3, 5-6.
7 Plaintiff's complaint, paragraph 7.
8 See Act of December 3, 1959, P.L. 1688, § 403-C, as added, 35 P.S. § 1680.403c
(Main Vol. and 1998 Supp.).
9 Plaintiff's complaint, paragraph 11, Exhibit B.
~Old.
was $79,904.12. TM Interest was said to be accruing at the rate of $19.65 per day. 12
Defendant's answer admitted the existence of the mortgage and Defendant's place of
residence,13 denied on the basis of an absence of sufficient information or knowledge the
amount of the debt claimed by Plaintiff,TM and denied that he had "received the required
statutory notification pursuant to the governing and applicable statutory rules and
requirements?s In new matter, Defendant alleged the following:
13. Plaintiff failed to properly service Defendant
notice in accordance with the Mortgage Foreclosure Rules
pursuant to the Pennsylvania Rules of Civil Procedure; The
Homeowner's Emergency Assistant Act and the Mortgage
Foreclosure Statutory Requirement and, therefore, Plaintiff's
Complaint in Mortgage is not valid.
14., Plaintiff's claim for mortgage foreclosure is
invalid because Plaintiff violated the Pennsylvania Unfair Trade
Practice and Consumer Protection Law.
15. Plaintiff's claim may be barred in whole or in part
by the Homeowner's Emergency Assistance Act, the Mortgage
Foreclosure Act, and Mortgage Foreclosure Rules.
16. Defendant has satisfied part of the mortgage
indebtedness as pled by Plaintiff and therefore does not owe the
amount as alleged by Plaintiff.~6
Plaintiff's reply to the new matter reiterated its averment that proper statutory notice
~ Plaintiff's complaint, paragraph 8.
12 Plaintiff's complaint, paragraph 9.
13 Defendant's answer with new matter, paragraphs 1, 5.
14 Defendant's answer with new matter, paragraphs 7-9.
15 Defendant's answer with new matter, paragraph 1 1.
26 Defendant's answer with new matter, paragraphs 1 3-16.
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had been provided as indicated in the complaint.~7 While conceding that Defendant had
made some payments under the mortgage, Plaintiff also reiterated its averment that no
payments had been made since November 1, 1995.
Plaintiff's motion for summary judgment was filed on February 1, 1999. It reasserted
the factual basis for the claim in mortgage foreclosure, pointed to the various admissions and
general denials in Defendant's answer, and noted the contemporaneous filing of an affidavit
in support of the motion for summary judgment. ~8
The affidavit referred to in Plaintiff's motion for summary judgment was executed by
Tracy Crawford.~9 It stated that she was a vice president of the present mortgage holder,2°
reaffirmed on the basis of personal knowledge the existence of the mortgage, the absence of
payments since November 1, 1995, and the mailing of the Act 91 Notice to Defendant at his
last known address on January 11, 1996,21 and itemized the amounts due as of December 31,
1998, as follows:
6. IT]he outstanding balance, exclusive of attorney's
fees and costs, as of December 31, 1998 is as follows:
Present Principal Balance
Interest from a 10/1/95 to 12/31/98
Escrow advance
Late charges due
Inspection fees
BPO/Appraisal fee
Total to pay loan in full
$ 72,626.55
23,308.74
5,958.41
1,320.00
244.30
85.00
$103,543.00
~7 Plaintiff's reply to new matter, paragraphs 13, 15.
~8 Plaintiff's motion for summary judgment, paragraphs 1-23.
19 Affidavit ofTracy Crawford, filed February 1, 1999.
2o Id., paragraph 1.
2~ Id., paragraphs 3-5, 12.
7. [I]nterest accrues from the
1999, at the rate of $19.64 per diem.
8.
9.
10.
1st day of January,
[T]he monthly payment is $826.00.
[L]egal fees incurred to date are $1,800.00.
[L]egal costs incurred to date are $756.51.22
Defendant's answer to the motion for summary judgment stated, inter alia, that
"Defendant would not have knowledge as to specific amounts by which the mortgage was
or was not reduced or knowledge of... 'other expenses, costs and charges collectible under
the note and mortgage' and therefore would be without sufficient information to respond.''23
With respect to the Act 91 notice, Defendant's answer to the motion stated that "Defendant
admits that Plaintiff has submitted an affidavit concurrent with the filing of the Motion for
Summary Judgment [alleging the mailing of such a notice]; however, the pertinent provision
of the Homeowner Emergency Assistance Act states that notice is documented by a
certificate of mailing obtained from the United States Postal Service which has completion
of which (sic) has not been filed or even suggested by Plaintiff.''24 Defendant's answer
concluded that "the case is not ripe for summary judgment.''25
The affidavit submitted by Defendant to the office of the Court Administrator read in
its entirety as follows:
1.
located at
17025.
I am Barry K. Stablein, mortgagor of the property
612 York Circle, Mechanicsburg, Pennsylvania,
2. On or about September 25, 1989, I secured a
mortgage on the property with Broadview Mortgage Company
22 Id., paragraphs 6-10.
23 Defendant's answer to motion for summary judgment, paragraph 12.
24 Id., paragraph 18.
25 Id., paragraph 23.
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in the amount of $76,000.00; the mortgage was subsequently
assigned to Homeside Lending, Inc., Barnett Mortgage Co., c/o
BancPlus Mortgage Corp.
3. Since September, 1989, my mortgage payments
have been approximately $9,900.00 per year; however I do not
know what amounts have been applied to principal and what
amounts have been applied to interest, or what other charges the
bank is seeking. In November, 1995, I began to experience
difficulty in making the mortgage payments of $826.00 per
month.
4. On or about February 8, 1996, I met with
Consumer Credit Counseling Service of Greater Harrisburg in
an attempt to establish a repayment schedule with the
mortgagee.
5. In March, 1996, I proposed a repayment schedule
to BancPlus Mortgage Company and their law firm; I advised
BancPlus and their counsel that I was totally disabled and
unable to work.
6. From May through August, 1996, I attempted to
establish a repayment schedule with Homeside Lending Co. At
various times I requested specific payoff amounts of which I
was unaware and as well, I challenged the right of the
mortgagee to collect counsel fees.
7. Unbeknownst to me, a Complaint in Mortgage
Foreclosure was filed in this Court on May 28, 1996, and was
apparently reinstated on August 12, 1996, and again on April 24,
1997.
8. On January 26, 1999, I sent a certified letter to
First American Loss Mitigation Services in an attempt to resolve
my delinquency pursuant to protection offered by the mortgage
owner: Federal Home Loan Mortgage Corporation (Freddie
Mac). A true and correct copy of my request is attached hereto
and incorporated herein by reference; notice of my request was
provided to counsel for Plaintiff.26
As 'noted previously, the issue of Plaintiff's motion for summary judgment was
submitted to the court on briefs. Defendant's brief maintains that the case is not ripe for
summary judgment for three reasons:
... Plaintiff alleges specific amounts paid or not paid as
a basis for its allegation of default. Defendant does not know
the specific amount in default as alleged by Plaintiff....
Defendant would have no way of knowing those specific
amounts or the other charges .... Defendant has provided an
affidavit attesting that he does not possess information regarding
the specific amounts or other charges as alleged by Plaintiff?
... Plaintiff did not document notice of the "Act 91"
Notice with a certificate of mailing nor has Plaintiff suggested
a certificate of mailing was filed?
Finally, Defendant has attempted to effect repayment or
reinstatement of the subject mortgage: first by meeting with
Consumer Credit in February, 1996; second from May through
August, 1996; and most recently with First American Mitigation
Loss Services as of January 28, 1999.29
DISCUSSION
Under Pennsylvania Rule of Civil Procedure 1035.2, a party may move for summary
judgment as a matter of law "(1)whenever there is no genuine issue of any material fact as
to a necessary element of the cause of action or defense which could be established by
additional discovery or expert report, or (2) if, after the completion of discovery relevant to
the motion, including the production of expert reports, an adverse party who will bear the
1999.
26 Affidavit of Barry K. Stablein, filed with Court Administrator on February 26,
27 Defendant's Brief in Response to PlaintifFs Motion for Summary Judgment, at 3.
28 Id., at4.
29/d.
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burden of proof at trial has failed to produce evidence of facts essential to the cause of action
or defense which in a jury trial would require the issues to be submitted to a jury." The
party adverse to the motion "may not rest upon the mere allegations or denials of the
pleadings .... -30
The party opposing the mOtion must file a response within thirty days aRer 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.31
With respect to mortgage foreclosure actions, a defendant's averment that he or she
is without sufficient information to form a belief as to the correctness of the debt claimed due
on the mortgage will usually not suffice to avoid the grant of a mortgagee's motiOn for
summary judgment. New York Guardian Mortgage Corp. v. Dietzel, 326 Pa. Super. 426,
524 A.2d 951 (1987). "Unquestionably, apart from [the mortgagee, the mortgagor is the only
party] who would have sufficient knowledge on which to base a specific denial." Id. at 429,
524 A.2d at 952.
In addition, although proof of the mailing of an Act 91 notice may be supplied by a
certificate obtained from the United States Postal Service,32 the court is not aware of any rule
requiring the filing of such a certificate or precluding proof of mailing by affidavit, for
3o Pa. R.C.P. 1035.3(a).
31Id'
32 Act of December 3, 1959, P.L. 1688, § 403-C, as added, 35 P.S. § 1680.403c(e)
(Main Vol. And 1998 Supp.).
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purposes of a summary judgment motion. Defendant apparently acted in accordance with
the notice in 19.96 when he met with the Consumer Credit Counseling Service of Greater
Harrisburg in an attempt to establish a repayment schedule with the mortgagee.33
Finally, Defendant's efforts to amicably resolve the matter of his default do not in
themselves constitute a defense to the instant mortgage foreclosure action. For the foregoing
reasons, and based upon the standard for review of a motion for summary judgment, Plaintiff
is entitled to summary judgment against Defendant.
ORDER OF COURT
AND NOW, this 30th day of March, 1999, upon consideration of Plaintiff's motion
for summary judgment, and for the reasons stated in the accompanying opinion, Plaintiff's
motion for summary judgment is granted.
BY THE COURT,
Jill M.Wineka, Esq.
Leon P. Hailer, Esq.
Purcell, Krug &Haller
1719 North Front St.
Harrisburg, PA 17102-2392
Attorneys for Plaintiff
Michael L. Bangs, Esq.
302 South 18th St.
Camp Hill, PA 17011
Attorney for Defendant
/s/J. Wesley Oler Jr.
J. Wesley Oler, Jr., J.
33 See supra text accompanying notes 16, 26.
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