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Home My WebLink About97-6765 CivilGE CAPITAL MORTGAGE SERVICES, INC., Plaintiff Vo STEVEN BRYMESSER and PATTY BRYMESSER, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION -- LAW · · No. 974V~'5"CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. ORDER OF COURT AND NOW, this 7th day of July, 1999, upon consideration of Plaintiff's motion for summary judgment against Defendant Steven Brymesser, and for the reasons stated in the accompanying opinion, an in rem judgment is entered in favor of GE Capital Mortgage Services, Inc., and against Defendant Steven Brymesser in the sum of $86,269.79, together with interest at the rate of $20.40 per diem from March 25, 1999, and any additional escrow advances for taxes and insurance. Jill M. Wineka, Esq. 1719 North Front St. Harrisburg, PA 17102 Attorney for Plaintiff Steven Brymesser 3166 Ritner Highway Newville, PA 17241 c/o Harold Brymesser 714 Gobin Drive Carlisle, PA 17013 Defendant, Pro Se BY THE COURT, Patty Brymesser 3166 Ritner Highway Newville, PA 17241 Defendant, Pro Se GE CAPITAL MORTGAGE SERVICES, INC., Plaintiff Vo STEVEN BRYMESSER and PATTY BRYMESSER, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · CIVIL ACTION -- LAW .- · No. 97-6745 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., July 7, 1999. In this mortgage foreclosure action, Plaintiff mortgagee has filed a motion for summary judgment against Defendant Steven Brymesser (hereinafter Defendant), one of the mortgagors.~ Defendant has not filed an answer to the motion, submitted a brief in opposition to it, or appeared at oral argument. For the reasons stated in this opinion, Plaintiff's motion for summary judgment will be granted. STATEMENT OF FACTS The record in this case consists of a complaint, an answer with new matter filed by Defendant Steven Brymesser, a reply to new matter, Plaintiff's motion for summary judgment, and an affidavit of a foreclosure specialist employed by Plaintiff in support of the motion for summary judgment. Plaintiff's complaint, filed December 8, 1997, was served personally upon Defendant at the mortgaged premises on December 12, 1997.2 The complaint alleged that Plaintiff GE Capital Mortgage Services, Inc., was the ~ The case is in a different procedural posture as to the second defendant/mortgagor, and a similar motion is not pending as to her. 2 Sheriff's Return, December 16, 1997. assignee of a $68,000.00 mortgage on the subject property at 3166 Ritner Highway, Newville, Cumberland County, Pennsylvania;3 Defendants Steven Brymesser and Patty Brymesser were identified as the mortgagors.4 The complaint averred that the defendants resided at the mortgaged premises and that the mortgage was in default due to the absence of any payments on the underlying debt and associated charges since March 24, 1997.s It alleged further that "Act 91" requirements had been met6 and that the defendants had either failed to meet the applicable time limitations under the act or had been determined by the Housing Finance Agency to be unqualified for assistance .7 As of March 24, 1997, according to the complaint, the amount due under the mortgage was $77,826.44.8 Interest was said to be accruing at the rate of $20.40 per day.9 Defendant Steven Brymesser filed an answer with new matter, admitting the defendants' residency,~° and indicating (a) that he did not know whether Plaintiff was an assignee of the mortgage,~l (b) that he did not know what amount was due under the Plaintiff's complaint, paragraphs 3-5. Id., paragraph 4. Id., paragraph 7. See Act of December 23, 1983, P.L. 385, No. 91, {}2, as amended, 35 Pa.C.S. 680.403c (notice requirements under Homeowners' Emergency Mortgage Assistance Act). Plaintiff's complaint, paragraph 11. Id., paragraph 7. 9Id. lo Id., paragraph 2 ~ Answer with new matter of Defendant Steven Brymesser, paragraph 4. 2 mortgage,12 and (c) that he did not know whether Act 91 had been complied with]3 He averred further that Plaintiff had refused to accept a partial payment from him on the obligation? In a reply to Defendant's new matter, Plaintiff noted that it had "no contractual or statutory obligation to accept less than the full amount to reinstate the Defendants' delinquent loan.''~s Plaintiff's motion for summary judgment was filed on April 8, 1999. It reviewed the complaint and response of Defendant Steven Brymesser, and noted the contemporaneous filing of an affidavit in support of the motion for summary j udgment.~6 The affidavit referred to in Plaintiff's motion for summary judgment was executed by Alex Turner. 17 It stated that he was a foreclosure specialist with Plaintiff, ~Sreaffirmed on the basis of his knowledge the existence of the mortgage, the recorded assignment of the mortgage to the Plaintiff, the absence of payments since March 24, 1997, and the mailing of the Act 91 notices to the defendants at their residence on July 16, 19977 Copies of the Act 91 notices appended to the affidavit disclose Plaintiff's advice that the defendants might be eligible for financial assistance to save their home from foreclosure, that a temporary stay of foreclosure was available, that a face-to-face meeting with the lender or a consumer credit counseling agency could be obtained, and that the Pennsylvania Housing Finance Agency t2 Id, paragraph 7. 13 Id., paragraph 11. Defendant averred that he had not been in actual receipt of advice from Plaintiff that he might qualify for assistance from the Housing Finance Agency. Id. 14 Id., paragraphs 12-22. ~5 See Plaintiff's reply to new matter, paragraphs 15-17, 21. 16 Plaintiff's motion for summary judgment, paragraphs 1-21. 17 Affidavit of Alex Turner, filed April 8, 1999. 18 Id., paragraph 1. 19 Id., paragraphs 2-5, 13. was a potential source of assistance upon application.2° The affidavit further itemized the amounts due as of March 24, 1999, as follows: 7. [T]he outstanding balance, exclusive ofattomey's fees and costs, as of March 24, 1999, is as follows: Present principal balance $67,740.61 Interest from 2/24/97 to 3/24/99 15,509.74 Late charges 808.75 Appraisal/BPO 170.00 Property inspection fees 154.75 Total to pay loan in full $84,383.85 8. [I]nterest accrues fi.om the first day of March, 1999, at the rate of $20.40 per diem. 9. [T]he monthly payment is $647.07. 10. [L]egal fees incurred to date are $1,550.00. 11. [T]he costs incurred to date are $335.94? As noted previously, Defendant did not file an answer to Plaintiff's motion for summary judgment. Argument was heard on the motion on June 30, 1999.22 DISCUSSION Under Pennsylvania Rule of Civil Procedure 1035.2, a party may move for summary judgment as a matter of law "(1) whenex)er 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 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." 2°Id, paragraph 13 and exhibit. 2~ Id., paragraphs 7-11. 22 As noted above in the text, Defendant did not submit a brief or appear at the argument. 4 The party opposing the motion 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? "Summary judgment may be entered against a party who does not respond [to a motion for summary judgment]." Pa. R.C.P. 1035.3(d). 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 m°rtgagee's motion for summary judgment. New York Guardian Mortgage Corp. v. Dietzel, 326 Pa. Super. 426, 429, 524 A.2d 951,952 (1987); Barnett Mortgage Co. v. Stablein, __ Cumberland L.J. __., __ (No. 96-2967 Civil Term; March 30, 1999). "Unquestionably, apart from [the mortgagee, the mortgagor is the only party] who would have sufficient knowledge on which to base a specific denial." New York Guardian Mortgage Corp. v. Dietzel, 326 Pa. Super. 426, 429, 524 A.2d 951,952 (1987). In addition, under the Act of December 23, 1983, P.L. 385, No. 91, § 2, as amended, 35 P.S. § 1680.403c(a), "[a]ny mortgagee who desires to foreclose upon a mortgage [of the type sub judice] shall send to [the] mortgagor at his or her last known address [a certain notice]: Provided, however, That such mortgagor shall be at least sixty (60) days contractually delinquent in his mortgage payments or be in violation of any other provision 23 Pa. R.C.P. 1035.3(a). "If the moving party has supported the motion with oral testimony only, the response may raise the defense that there is a genuine issue of material fact because the cause of action is dependent upon the credibility and demeanor of the witnesses who will testify at trial." Note, Pa. R.C.P. 1035.1(a). of such mortgage." The contents of the notice sub judice were statutorily prescribed: The notice shall list consumer credit counseling agencies and shall advise the mortgagor of his delinquency or other default under the mortgage and that such mortgagor has thirty (30) days to have a face-to-face meeting with the mortgagee who sent the notice or a consumer credit counseling agency to attempt to resolve the delinquency or default by restructuring the loan payment schedule or otherwise .... The notice shall include a statement that, if the mortgagor is unable to resolve the delinquency or default within thirty (30) calendar days of the mortgagor's first contact with either the mortgagee or a consumer credit counseling agency, the mortgagor may apply to the agency or its duly authorized agent at the address and phone number listed in the notice in order to obtain an application and information regarding the Homeowner's Emergency Mortgage Assistance Program.24 Finally, it was statutorily provided that the notice "shall be deemed to [be received] on the third business day following the date of the mailing of the notice .... ,,2s In the present mortgage foreclosure case, where Defendant mortgagor (a) has been unable to affirmatively deny the existence of the mortgage obligation, the assignment of the mortgage, the default, the amount owing to Plaintiff, or the mailing of the Act 91 notice, (b) Plaintiff's motion for summary judgment against Defendant has been supported by a detailed affidavit as aforesaid, and (c) Defendant has not filed a response to Plaintiff's motion raising the defense of the existence of a genuine issue of material fact which would preclude the relief requested by Plaintiff, Plaintiff is entitled to summary judgment against Defendant. For this reason, the following order will be entered: ORDER OF COURT AND NOW, this 7th day of July, 1999, upon consideration of Plaintiff's motion for summary judgment against Defendant Steven Brymesser, and for the reasons stated in the 24 Act of December 23, 1983, P.L. 385, No. 91, {32, as amended, 35 P.S. §1680.403c(b). 25 Id.,35 P.S. §1680.403c(e). 6 accompanying opinion, an in rem judgment is entered in favor of GE Capital Mortgage Services, Inc., and against Defendant Steven Brymesser in the sum of $86,269.79, together with interest at the rate of $20.40 per diem from March 25, 1999, and any additional escrow advances for taxes and insurance. BY THE COURT, Jill M. Wineka, Esq. 1719 North Front St. Harrisburg, PA 17102 Attorney for Plaintiff Steven Brymesser 3166 Ritner Highway Newville, PA 17241 c/o Harold Brymesser 714 Gobin Drive Carlisle, PA 17013 Defendant, Pro Se Patty Brymesser 3166 Ritner Highway Newville, PA 17241 Defendant, Pro Se /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 7