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HomeMy WebLinkAbout02-4882 CivilCREDIT BASED ASSET SERVICING AND SECURITIZATION,: Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW MALINDA S. MEEHAN f/k/a MALINDA S. RAMUSSEN and CHARLES MEEHAN OR: OCCUPANTS 519 Hamilton Street Carlisle, PA 17013, Defendants NO. 02-4882 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, J., October 2, 2003. In this ejectment action, Plaintiff seeks damages and possession of property which Defendants have allegedly failed to vacate following Plaintiff' s purchase of the property at a sheriff's sale.~ For disposition at this time is Plaintiff's motion for summary judgment. No response was filed to Plaintiff's motion. The matter was argued on August 27, 2003. For the reasons stated in this opinion, Plaintiff' s motion will be granted in part and denied in part. STATEMENT OF FACTS The present action in ejectment was commenced by complaint on October 7, 2002. Plaintiff is Credit Based Asset Servicing and Securitization, having offices at Suite 600, 5373 W. Alabama, Houston, TX 77056.2 Defendants are Plaintiff's complaint, filed October 7, 2002. Plaintiff's complaint, para. 1; Answer of Defendant Malinda S. Meehan, para. 1. Malinda S. Meehan and Charles Meehan, now or formerly residing at 519 Hamilton Street, Carlisle, Cumberland County, Pennsylvania.3 According to Plaintiff's complaint, Plaintiff became the owner of the premises at 519 Hamilton Street, Carlisle, Cumberland County, Pennsylvania, by virtue of its purchase of the property at a sheriff's sale on Thursday, September 5, 2002. An answer to the complaint filed on behalf of Defendant Malinda S. Meehan admitted that she was residing on the premises and denied that Defendant Charles Meehan still lived there.4 The answer of Defendant Malinda S. Meehan did not refute Plaintiff's allegation that it was the owner of the premises5 and denied generally Plaintiff's allegation that she had no legal interest in the property.6 No answer was filed on behalf of Defendant Charles Meehan. On December 10, 2002, Plaintiff filed the motion for summary judgment subjudice. 7 The motion averred the following, inter alia: 1. Plaintiff is Credit Based Asset Servicing and Securitization. Plaintiff's address is 5373 West Alabama, Suite 600, Houston, TX 77056. 2. Defendants, Malinda S. Meehan, f/k/a Malinda S. Rasmussen and Charles Meehan or Occupants, are individuals residing at 519 Hamilton Street, Carlisle, PA 17013. In defendant's Answer to paragraph 2 of the Complaint, it is admitted that Malinda S. Meehan, f/k/a Malinda S. Rasmussen resides at 519 Hamilton Street, Carlisle, Pennsylvania, but denied that Charles Meehan resides at the aforesaid address.. s Plaintiff's complaint, para. 2; Answer of Defendant Malinda S. Meehan, para. 2. 4 Answer of Defendant Malinda S. Meehan, para. 2. 5 The answer indicated that Defendant did not have sufficient information to form a belief as to the truth of the averment. Answer of Defendant Malinda S. Meehan, paras. 3-5. 6 Answer of Defendant Malinda S. Meehan, para. 6. This general denial was the equivalent of an admission. Pa. R.C.P. 1029(b). 7 Plaintiff's motion for summary judgment, filed March 12, 2003. 2 3. Plaintiff is the owner of the premises located at 519 Hamilton Street, Carlisle, PA 17013 (the "Property"). 4. Plaintiff became owner of the Property by Assignment from Conti Mortgage Corporation and pursuant to a foreclosure sale after which sale a Deed was lodged at the Department of Records and Settlement made with the Sheriff of Cumberland County. 5. Defendants are now in exclusive possession of the Property without right, and so far as the plaintiff is informed, without claim of title. 6. On September 13, 2002, Plaintiff sent notice by regular and certified mail return receipt requested to defendants to vacate the property. 7. Plaintiff has thus demanded possession of the Property from the defendants who have refused to deliver up possession of the same. 8. Plaintiff by virtue of the above, is the owner of the property, and is entitled to back rent including late charges from February 11, 2000 until present.8 Although Defendant Malinda S. Meehan was served with Plaintiff' s motion for summary judgment, it does not appear that service was attempted upon Defendant Charles Meehan.9 No answer was filed to Plaintiff's motion for summary judgment. No brief was submitted in opposition to the motion, nor did either Defendant appear at the oral argument to oppose the motion, in person or through counsel, l0 DISCUSSION Statement oflarv. Under Pennsylvania Rule of Civil Procedure 1035.2, it is provided as follows with respect to summary judgment: 8 Plaintiff's motion for summary judgment, paras. 1-8. 9 See Certificate of service, Plaintiff's motion for summary judgment. l0 Counsel for Defendant Melissa S. Meehan was permitted to withdraw from the case, because of Defendant's failure to cooperate in her defense, inter alia. See Petition To Withdraw Appearance, filed July 10, 2003; Rule To Show Cause, July 18, 2003 (Hess, J.); Petition To Make Rule Absolute, filed August 14, 2003; Order of Court, August 19, 2003 (Hess, J.). 3 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. 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. Detain/er v. SmithKline Beecham Corp., 448 Pa. Super. 425, 430, 671 A.2d 1151, 1153 (1996). "[T]he mission of the summary judgment procedure is to pierce the pleadings and to assess proof in order to see whether there is a genuine need for a trial." Erte/v. Patriot-News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1042 (1996). The purpose of summary judgment is to "eliminate the waste of time and resources of both litigants and the courts in cases where a trial would be a useless formality." Li/es v. Ba/mer, 389 Pa. Super. 451,454, 567 A.2d 691, 692 (1989); seeMoritz v. G/uck, 48 Cumberland L.J. 1, 3 (1998). To this end, "[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 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. Pa. R.C.P. 1035.3(a). 4 Accordingly, it is well settled that "[s]ummary judgment may be entered against a party who does not respond [to the motion for summary judgment]." Pa. R.C.P. 1035.3(d). Application of la,: to facts. In the present case, Plaintiff's motion for summary judgment against Defendant Charles Meehan is premature, inasmuch as the pleadings have not been closed as to him, nor does it appear that the motion was served upon him. As against Defendant Malinda S. Meehan, the motion, although consistent with the complaint as to ejectment, is not consistent as to damages. ~ Given the foregoing principles of law, the state of the present record, the absence of a response to Plaintiff's motion for summary judgment, the absence of a defense brief on the motion, and the absence of an appearance at oral argument on behalf of either defendant, the court will enter the following order: ORDER OF COURT AND NOW, this 2nd day of October, 2003, upon consideration of Plaintiff's motion for summary judgment, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff's motion for summary judgment in ejectment against Defendant Malinda S. Meehan, and any persons residing through her, is granted, and she is ejected from the premises at 519 Hamilton Street, Carlisle, Cumberland County, Pennsylvania; 2. Plaintiff's motion for summary judgment in ejectment against Defendant Charles Meehan is denied; and 3. Plaintiff's motion for summary judgment for damages against Defendants is denied. ~ In its complaint, Plaintiff alleges that its ownership of the property in question commenced on September 5, 2002. Plaintiff's motion for summary judgment requests damages from February 11, 2000. 5 BY THE COURT, Tamara Chasan, Esq. The Curtis Center Fourth Floor Independence Square West Philadelphia, PA 19106-3304 Attorney for Plaintiff Malinda S. Meehan Charles Meehan 519 Hamilton Street Carlisle, PA 17013 Defendants, Pro Se s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 6 7 CREDIT BASED ASSET SERVICING AND SECURITIZATION,: Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo CIVIL ACTION - LAW MALINDA S. MEEHAN f/k/a MALINDA S. RAMUSSEN and CHARLES MEEHAN OR: OCCUPANTS 519 Hamilton Street Carlisle, PA 17013, Defendants NO. 02-4882 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE HOFFER, P.J., HESS and OLER, JJ. ORDER OF COURT AND NOW, this 2nd day of October, 2003, upon consideration of Plaintiff's motion for summary judgment, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff's motion for summary judgment in ejectment against Defendant Malinda S. Meehan, and any persons residing through her, is granted, and she is ejected from the premises at 519 Hamilton Street, Carlisle, Cumberland County, Pennsylvania; 2. Plaintiff's motion for summary judgment in ejectment against Defendant Charles Meehan is denied; and 3. Plaintiff's motion for summary judgment for damages against Defendants is denied. 9 Tamara Chasan, Esq. The Curtis Center Fourth Floor Independence Square West Philadelphia, PA 19106-3304 Attorney for Plaintiff Malinda S. Meehan Charles Meehan 519 Hamilton Street Carlisle, PA 17013 Defendants, Pro Se BY THE COURT, J. Wesley Oler, Jr., J.