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HomeMy WebLinkAbout98-6576 EquityRONALD A. RILEY, AK-8743: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA Vo FIRST UNTION HOME EQUITY BANK, ROBERT : CIVIL ACTION--EQUITY M. MRAZ, FEDERMAN AND: PHELAN, LLP, ROBERT B. LIEBERMAN, ESQUIRE, and MICHELE M. BRADFORD, ESQUIRE, Defendants : No. 98-6576 Equity Term IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS; DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., and OLER, J. OPINION and ORDER OF COURT OLER, J., August 4, 2003. This equity action was initiated by a pro se plaintiff against his step-father and a lending institution. Plaintiff subsequently added the lending institution's attorneys as defendants. The gist of Plaintiff's claim is that his step-father subjected a property in which Plaintiff had an oral interest to a mortgage in favor of the lending institution, that the lending institution should have realized Plaintiff had an interest in the property when it made the loan, that his step-father defaulted on the loan, and that the institution and its counsel proceeded to foreclose on the property. For disposition at this time are (a) a motion for judgment on the pleadings filed by Plaintiff against the lending institution and its attorneys and (b) a motion for summary judgment filed by the lending institution and its attorneys against Plaintiff. These motions were argued on February 12, 2003. For the reasons stated in this opinion, Plaintiff's motion for judgment on the pleadings will be denied and Defendants' motion for summary judgment will be granted. STATEMENT OF FACTS Plaintiff, while an inmate at a state correctional institution,~ commenced the present action "in equity, in trespass, in assignment, and in attachment''2 on November 18, 1998. The action concerned a property at 3653 Chestnut Street, Camp Hill, Cumberland County, Pennsylvania) Named as Defendants were Plaintiff's step-father, Robert M. Mraz, of the Camp Hill address,4 and First Union Home Equity Bank, located in Charlotte, North Carolina) The complaint alleged that, by an "inviolate" agreement, Plaintiff's mother and Defendant Mraz had orally promised Plaintiff that he would inherit his mother's interest in the aforesaid residence when she died.6 It averred that she died in June, 1995, and that, in accordance with the agreement, Defendant Mraz thereafter added Plaintiff's name to the deed.7 However, according to the complaint, unbeknownst to Plaintiff a preexisting mortgage encumbered the property in favor of Defendant First Union Home Equity Bank,8 and Defendant Mraz eventually defaulted on the mortgage.9 Plaintiff's Plaintiff' s Plaintiff's complaint, para. 2. complaint, caption. complaint, para. 4. 4 Plaintiff's complaint, para. 4. The record does not appear to indicate that Plaintiff's step-father was served with original process. Plaintiff's Plaintiff' s Plaintiff' s Plaintiff's Plaintiff' s complaint, para. 3. complaint, para. 5. complaint, para. 6. complaint, para. 7. complaint, para. 8. 2 As a consequence of the default, Defendant First Union accelerated the loan and initiated a mortgage foreclosure action, according to the complaint, l0 The complaint alleged that Plaintiff had been unaware of the loans which predated his record interest in the property, ~ and that he "should not be victimized by the default of MRAZ..., regardless of how lawful the intention(s) of [First Union] may well be.''~2 Liability of First Union was premised upon the following allegations: 20. The Bank, by its refusal/failure to properly and/or adequately investigate factors relating to the estate to determine whether agreement by all interested parties were in agreement with the loan sought and acquired by MRAZ, did recklessly and callously assist MRAZ in the defrauding of Plaintiff of his portion of the estate through usage of loan default and by its solely intending to act as a blind agent which MRAZ utilized said Bank as a "dumping ground" for the estate and those having interest in it. 21. The Bank, by its refusal/failure to adequate screen applicants for loans wherein collateral of estate(s) is offered, did act in direct and indirect complicity with MRAZ in the direct and indirect assisting in defrauding Plaintiff of his rightful inheritance and interest of the estate, in violation with existing law(s) prohibiting such conduct. 22. The Bank, in its intention(s) to enact forfeiture proceedings for the estate which was placed in defauly by MRAZ, specifically, deliberately and intentionally and maliciously indicates complicity to assist MRAZ in the denial to Plaintiff his interests in the estate and MRAZ's intention(s) to commit fraud and deception by which conduct violates existing law(s) prohibiting such actions and activity. 23. The Bank, by its indirect complicity with MRAZ through association of the defaulted loan(s) thereby, did conspire by affiliation and proxy to assist the Defendant (MRAZ) in his deprivation to Plaintiff his inheritance and Plaintiff's complaint, para. 8. Plaintiff's complaint, para. 11. Plaintiff's complaint, para. 11. 3 interest in the estate by deceitful and maliciously deceptive means, in violation of existing laws prohibiting such conduct and activity. 24. The Bank, by the failure/refusal to adequately screen and/or inquire into the background of applicants seeking loans such as MRAZ, did deliberately act with negligence, indifference and with reckless disregard for the rights, immunities and/or privileges of Plaintiff, in violation with existing law(s) prohibiting such conduct and activity. 25. The Bank, by its callous, reckless and indifferent disregard for the possibility of alternative(s) available to consumers relating to defaulted loans and/or inability to meet those guidelines of which loans have been extended based on uncontrollable factors not existing prior to application therefore by that consumer, has and intends to cause to Plaintiff irreparable injury through the removal, confiscation and/or acquisition of his estate via forfeiture proceedings for loans defaulted upon by MRAZ absent agreement, consent and/or approval in any manner by Plaintiff and/or enjoyment of funds from said loan(s) of any sort. Plaintiff filed an amended complaint on August 14, 2002, with permission of the court,TM adding as defendants First Union's attorneys in the foreclosure proceeding, Federman and Phelan, LLP, Robert B. Lieberman, Esq., and Michele M. Bradford, Esq.~s The amended complaint averred that the added defendants "committed fraud in initiating and carrying out an illegal eviction, foreclosure and sheriff sale of Plaintiff's home,''~6 inter alia. Defendants, with the exception of Plaintiff's step-father (hereinafter Defendants), filed an answer with new matter to the amended complaint, seeking its dismissal·~7 ~3 Plaintiff's complaint, paras. 20-25. ~4 Order of Court, August 19, 2002. ~s Plaintiff's amended complaint, filed August 14, 2002. 16 Plaintiff's amended complaint, para. 1. ~7 Defendants' answer with new matter to Plaintiff's amended complaint, filed August 15, 2002. 4 Plaintiff thereafter submitted a brief, several paragraphs of which the court deemed a reply to Defendants' new matter.~8 Defendants did not file a counter- reply to Plaintiff' s reply. Thereafter, Plaintiff filed a motion for judgment on the pleadings, on October 30, 2002. The motion was based upon Defendants' failure to file a counter-reply to Plaintiff's reply to new matter. 19 Defendants subsequently filed a motion for summary judgment, on January 22, 2003. This motion, inter alia, noted that "Plaintiff has failed to produce an iota of evidence essential to the causes of action alleged against the Defendants, First Union Home Equity Bank, Federman and Phelan, LLP, Robert B. Lieberman, Esquire and Michele M. Bradford, Esquire.''2° No answer was filed by Plaintiff to Defendants' motion. Nor did Plaintiff supplement the record to provide evidence to support the allegations of his pleadings essential to his claim. DISCUSSION Motion for judgment on the pleadings. Under the Pennsylvania Rules of Civil Procedure, there is no requirement that a defendant file a counter-reply to a plaintiff's reply to new matter. See Pa. R.C.P. 1017(a). For this reason, the court is unable to accede to Plaintiff's position that judgment on the pleadings should be entered against Defendants due to Defendants' failure to file a counter-reply to Plaintiff' s reply to new matter. Motion for 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 ~8 See Order of Court, September 17, 2002. 19 Plaintiff's motion for judgment on the pleadings, para 8. 20 Defendants' motion for summary judgment, para. 21. 5 (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 report,', 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 (emphasis added). The record, for purposes of disposition of a motion for summary judgment, includes (1) pleadings, (2) depositions, answers to interrogatories, admissions and affidavits, and (3) reports signed by an expert witness that would, if filed, comply with Rule 4003.5(a)(1), whether or not the reports have been produced in response to interrogatories. Pa. R.C.P. 1035.1. However, 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). In this regard, "[a]n adverse party may supplement the record or set forth the reasons why the party cannot present evidence essential to justify opposition to 6 the motion and any action proposed to be taken by the party to present such evidence." Pa. R.C.P. 1035.3(b). Finally, "[s]ummary judgment may be entered against a party who does not respond [to the motion]." Pa. R.C.P. 1035.3(d). In the present case, Plaintiff has failed to file an answer to Defendants' motion for summary judgment, has failed to supplement the record by placing in evidence facts essential to his claim, and has, in effect, chosen to rely upon the allegations of his pleadings. Even should the rather conclusory averments of his pleadings be construed as setting forth a legally sufficient claim against the mortgagee and its counsel, the court has not been placed in a position to deny Defendants' motion for summary judgment.2~ For the foregoing reasons, the following order of court will be entered: ORDER OF COURT AND NOW, this 4TM day of August, 2003, upon consideration of Plaintiff' s motion for judgment on the pleadings and of the motion of Defendants First Union Home Equity Bank, Federman and Phelan, LLP, Robert B. Lieberman, Esq., and Michele M. Bradford, Esq., for summary judgment, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff's motion for judgment on the pleadings is denied; and 2. Defendants' motion for summary judgment is granted. BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. :~ Because of the court's disposition of Defendants' motion on this ground, it is unnecessary to consider additional arguments advanced in favor of the motion, such as that based upon the doctrine of res judicata. See Defendants' motion for summary judgment, para. 16. 7 Ronald A. Riley 701 North Front Street Harrisburg, PA 17101 Plaintiff, pro Se Sheetal R. Shah-Jani, Esq. Federman and Phelan, LLP Suite 1400 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 Attorney for Defendants First Union Equity Bank, Federman and Phelan, LLP, Robert B. Lieverman, Esq., and Michele M. Bradford, Esq. 8 9 RONALD A. RILEY, AK-8743: IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA Vo FIRST UNTION HOME EQUITY BANK, ROBERT : CIVIL ACTION--EQUITY M. MRAZ, FEDERMAN AND: PHELAN, LLP, ROBERT B. LIEBERMAN, ESQUIRE, and MICHELE M. BRADFORD, ESQUIRE, Defendants : No. 98-6576 Equity Term IN RE: PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS; DEFENDANTS' MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., and OLER, J. ORDER OF COURT AND NOW, this 4th day of August, 2003, upon consideration of Plaintiff' s motion for judgment on the pleadings and of the motion of Defendants First Union Home Equity Bank, Federman and Phelan, LLP, Robert B. Lieberman, Esq., and Michele M. Bradford, Esq., for summary judgment, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff's motion for judgment on the pleadings is denied; and 2. Defendants' motion for summary judgment is granted. BY THE COURT, J. Wesley Oler, Jr., J. Ronald A. Riley 701 North Front Street Harrisburg, PA 17101 Plaintiff, pro Se Sheetal R. Shah-Jani, Esq. Federman and Phelan, LLP Suite 1400 One Penn Center at Suburban Station 1617 John F. Kennedy Boulevard Philadelphia, PA 19103-1814 Attorney for Defendants First Union Equity Bank, Federman and Phelan, LLP, Robert B. Lieverman, Esq., and Michele M. Bradford, Esq.