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HomeMy WebLinkAbout02-4432 CivilWELLS FARGO HOME MORTGAGE, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW MARY ELLEN HOFFECKER, Defendant NO. 02-4432 CIVIL ACTION IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., and OLER, J. OPINION and ORDER OF COURT OLER, J., April 29, 2003. In this mortgage foreclosure action, Plaintiff has filed a Motion for Summary Judgment. Defendant, in a brief in opposition to the motion, argues that material facts remain in dispute related to (a) the pendency of an alleged appeal by Defendant from a denial of emergency assistance by the Pennsylvania Housing Finance Agency and (b) the reasonableness of attorney's fees, title search charges, and costs of suit claimed by Plaintiff. The matter was argued on February 12, 2003.~ For the reasons stated in this opinion, Plaintiff' s motion will be granted. STATEMENT OF FACTS On a motion for summary judgment, the record includes the pleadings, depositions, answers to interrogatories, admissions, affidavits, and expert reports. Pa. R.C.P. 1035.1. In the present case, the pertinent factual record consists of Plaintiff's Complaint in Mortgage Foreclosure, Defendant's Answer with New Matter, Plaintiff's Reply to Defendant's New Matter, Plaintiff's Motion for Summary Judgment, and an ~ It is noted that counsel for Defendant did not appear at oral argument and relies upon a brief submitted in the case. affidavit of Scott Patterson, Assistant Vice-President of Plaintiff Corporation,2 appended to Plaintiff' s summary judgment motion· On April 24, 2000, Defendant executed a mortgage in favor of Plaintiff encumbering premises located at 3521 Beach Run Lane, Hamden Township, Cumberland County, Pennsylvania.3 The amount borrowed was $136,500·00·4 The mortgage instrument provided, in relevant part, as follows: · . . This debt is evidenced by Borrower's note dated the same date as this Security instrument ("Note"), which provides for monthly payment,... i. Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall promptly pay when due the principal of and interest on the debt evidenced by the Note and any prepayments and late charges due under the Note. 21. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security instrument (but not prior to acceleration under paragraph 17 unless applicable law provides otherwise). Lender shall notify Borrower of, among other things: (a) the default; (b) the action required to cure the default; (c) when the default must be cured; and (d) that failure to cure the default as specified may result in acceleration of the sums secured by this Security instrument, foreclosure by judicial proceeding and sale of the Property. Lender shall further inform Borrower of the right to reinstate after acceleration and the right to assert in the foreclosure proceeding the non- existence of a default or any other defense of Borrower to acceleration and foreclosure. If the default is not cured as specified, Lender, at its option, may require immediate payment in full of all sums secured by this Security instrument without further demand and may foreclose this Security instrument by judicial proceeding. Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 21, 2 Aff. of Scott Patterson ¶ 1, Nov. 27, 2002. 3 Pl.'s Compl. in Mortgage Foreclosure ¶ 3; Def.'s Answer with New Matter ¶ 3. 4]d' 2 including, but not limited to, attorneys' fees and costs of title evidence to the extent permitted by applicable law.5 On March 1, 2002, Defendant defaulted on the mortgage obligation because she failed to make a monthly payment on the principal and interest due on that date.6 Plaintiff sent notice by both regular and certified mail on May 6, 2002, to Defendant, as required by 35 P.S. § 1680.403c,7 advising Defendant, in pertinent part: This is an official notice that the mortgage on your home is in default, and the lender intends to foreclose. Specific information about the nature of the default is provided in the attached pages. The HOMEOWNER'S MORTGAGE ASSISTANCE PROGRAM (HEMAP) may be available to help save your home. This notice explains how the program works. RIGHT TO CURE THE DEFAULT PRIOR TO SHERIFF'S SALE-- If you have not cured the default within the THIRTY (30) DAY period and foreclosure proceedings have begun, you still have the right to cure the default and prevent the sale at any time up to one hour before the Sheriff's Sale. You may do so by paying the total amount then past due, plus any late or other charges then due, reasonable attorney's fees, and costs connected with the foreclosure sale and any other costs connected with the Sheriff's sale as specified in writing by the Lender and by 8 performing any other requirements under the mortgage .... Defendant applied to the Pennsylvania Housing Finance Agency pursuant to the Homeowners Mortgage Assistance Program.9 However, this application was denied,l° 5 Pl.'s Compl. in Mortgage Foreclosure (emphasis in the original). 6 Pl.'s Compl. in Mortgage Foreclosure ¶ 5; Def.'s Answer with New Matter ¶ 5. Defendant's status in this regard is not at issue. See Def.'s Brief in Opposition to Pl.'s Motion for Summ. J., at2. 7 Pl.'s Compl. in Mortgage Foreclosure ¶ 8; Def. 's Answer with New Matter ¶ 8. 8 Pl.'s Motion for Summ. J., Ex. F (emphasis in the original). 9 Def.'s Answer with New Matter ¶ 15; Pl.'s Reply to Def.'s New Matter ¶ 15. ~°]d' 3 Plaintiff filed the Complaint in Mortgage Foreclosure in this matter on September 16, 2002, alleging that Defendant was in default on her mortgage and asking that the mortgage be foreclosed so that Plaintiff could have the property sold and recover $134,385.19 in principal, $6,460.29 in interest, $1,225.00 in attorney's fees, $354.73 in cumulative late charges and $550.00 in title search charges and costs of suit, less $473.17 held in escrow, for a total of $142,502.04.~ Defendant filed her Answer with New Matter on October 17, 2002.~2 In her New Matter, Defendant averred, in pertinent part, that an appeal from the denial of her application to the Pennsylvania Housing Finance Agency for assistance was pending, and that the attorney's fees, title search charges, and cost of suit requested by Plaintiff were unreasonable.~3 Plaintiff's Reply to Defendant's New Matter was filed on November 15, 2002.TM It averred, inter alia, that the Pennsylvania Housing Finance Agency had no record of Defendant's purported appeal,~5 and that the fees and costs in question were reasonable and consistent with the mortgage documents. 16 Plaintiff filed the Motion for Summary Judgment that is presently before the court on December 16, 2002.~7 On January 29, 2003, Plaintiff filed a Certification of No Response to Plaintiff's Motion for Summary Judgment.la Defendant filed an answer to Plaintiff's certification of no response and an amended answer to Plaintiff's certification ~ Compl. in Mortgage Foreclosure ¶ 5 & 6. ~2 Answer. ~3 Id ¶ 12-16. 14 Pl.'s Reply to Def.'s New Matter. ~5Id. ¶ 15. ~6Id. ¶ 16. ~7 Motion for Suture. J. The affidavit of Scott Patterson, Assistant Vice-President of Plaintiff, was attached to this motion. ~8 P1.'s Certification of No Response to P1.'s Motion for Suture. J. 4 of no response on January 27, 2003, and January 31, 2003, respectively.~9 These admitted that Defendant had filed no response to the motion; however, Defendant observed that Plaintiff had failed to attach a notice to plead to its motion for summary judgment and that briefs on the issue were not required until five days before argument court)° Both parties submitted briefs and the matter was argued on February 12, 2003. DISCUSSION Statement of Law Summary Judgment. Under Pennsylvania Rule of Civil Procedure 1035.2, it is provided as follows with respect to summary judgment: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part 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 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. Pa. R.C.P. 1035.2. When considering whether summary judgment is proper, a court must examine the record in the light most favorable to the non-moving party, with all doubts resolved against the moving party. Demmler v. SmithKline Beecham Corp., 448 Pa. Super. 425, 430, 671 A.2d 1151, 1153 (1996) (citingDenlinger, Inc. v. Dendler, 415 Pa. Super. 164, 170, 608 A.2d 1061, 1064 (1992)). 19 DeE's Answer to Pl.'s Certification of No Response; DeE's Amended Answer to Pl.' Certification of No Response. 20 Id. 5 On a summary judgment motion, the non-moving 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" that identifies: (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. Pa. R.C.P. 1035.3(a). "Summary judgment may be entered against a party who does not respond." Pa. R.C.P. 1035.3(d). This consequence of a failure to file an answer to a motion for summary judgment is not dependent upon an endorsement of the motion with a notice to plead. C~. Pa. R.C.P. 1026; Pa. R.C.P. 1017(a). Effect of Pendency of Appeal from Denial by Pennsylvania Housing Finance Agency. The Pennsylvania Housing Finance Agency Law provides, in relevant part: (6) If the mortgagor applies for mortgage assistance payments, the agency shall promptly notify all of the mortgagees secured by the mortgagor's real property. The agency shall make a determination within sixty (60) calendar days of receipt of the mortgagor's application. During the time that the application is pending, no mortgagee may commence legal action to foreclose upon its mortgage with mortgagor. Act of Dec. 3, 1959, P.L. 1688, § 403C, as amended, 35 P.S. § 1608.403c(b)(6) (West 2002); see also NBD Mortgage Company, Inc. v. Pennsylvania Housing Finance Agency Homeowner Emergency Assistance Program, 168 Pa. Commw. 645, 653-54, 651 A.2d 237, 241-42 (1994). The Pennsylvania administrative regulations pertaining to the Housing Finance Agency provide, in part, as follows: (ii) An applicant who is denied a mortgage assistance loan may request an administrative hearing under §31.207 (relating to repayment). This 6 request does not prohibit a mortgagee from pursuing legal action to enforce the mortgage. 12 Pa. Code § 31.203(b)(12)(ii) (emphasis added).2~ ,/Ittorney's Fees, Title Search Charges, and Costs. The absence of a concession by a defendant on the issue of the reasonableness of attorney's fees will not necessarily preclude a grant of summary .judgment in a mortgage foreclosure action. See First National Bank and Trust Comp. of Newtown v. Errico~ 40 Pa. D. & C.3d 228 (Bucks Co. 1985); Bogley, Hatting & Reese, Inc. v. Stuart~ 11 Pa. D. & C.3d 303 (Chester Co. 1979). Application of Law to Facts With respect to the issue of the effect on Plaintiff's mortgage foreclosure action of any appeal from an initial denial by the Pennsylvania Housing Finance Agency of Defendant's application for assistance~ two factors militate against acceptance of Defendant's position herein. First~ the applicable statute does not by its terms preclude an action in foreclosure during the pendency of such an appeal. 35 P.S. § 1608.403(b)(6) (West 2002). Second~ the applicable administrative regulation expressly provides that an appeal will not bar a foreclosure proceeding. 12 Pa. Code § 31.203(b)(12)(ii). With respect to the issue of the reasonableness of attorney's fees~ title search charges~ and cost of suit set forth by Plaintiff~ (a) the absence of any appearance of unreasonableness on the face of the amounts attributable to these items~ and (b) the failure of Defendant to file a response to Plaintiff's motion for summary judgment have led the court to conclude that Plaintiff's motion should not be denied on a theory that a genuine issue of material fact exists as to these charges. For the foregoing reasons~ the following order will be entered: 7 ORDER OF COURT AND NOW, this 29th day of April, 2003, upon consideration of Plaintiff's Motion for Summary Judgment, and for the reasons stated in the accompanying opinion, the motion is granted and an in rem judgment is entered in favor of Plaintiff and against Defendant for $142,502.04 plus interest and other costs and charges collectible under the mortgage, for the foreclosure and sale of the mortgaged property. BY THE COURT, /s/J. Wesley Oler., Jr. J. Wesley Oler, Jr., J. Jenine R. Davey, Esq. Suite 1400 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 Attorney for Plaintiff Joseph L. Hitchings, Esq. Suite 201 203 West Caracas Ave. Hershey, PA 17033 Attorney for Defendant But see UnitedPenn Bank v. Yustat-Lewis, 3 Pa. D. & C.4th 487 (Luzerne Co. 1989). 8 9 WELLS FARGO HOME MORTGAGE, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW MARY ELLEN HOFFECKER, Defendant NO. 02-4432 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., and OLER, J. ORDER OF COURT AND NOW, this 29th day of April, 2003, upon consideration of Plaintiff's Motion for Summary Judgment, and for the reasons stated in the accompanying opinion, the motion is granted and an in rem judgment is entered in favor of Plaintiff and against Defendant for $142,502.04 plus interest and other costs and charges collectible under the mortgage, for the foreclosure and sale of the mortgaged property. BY THE COURT, Jenine R. Davey, Esq. Suite 1400 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 Attorney for Plaintiff Joseph L. Hitchings, Esq. Suite 201 203 West Caracas Ave. Hershey, PA 17033 Attorney for Defendant J. Wesley Oler, Jr., J.