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HomeMy WebLinkAbout02-1458 CivilCONSECO CONSUMER DISCOUNT COMPANY V. GORDON E. LUCE and GERTRUDE LUCE, aka G. LUCILLE LUCE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-1458 CIVIL IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, ]. OPINION AND ORDER OF COURT The instant action was commenced by a complaint in mortgage foreclosure filed on March 25, 2002. Currently before us is plaintiff's motion for summary judgment. disposition. Each party has filed a brief and this matter is now ready for STANDARD OF REVIEW Pennsylvania Rule of Civil Procedure 1035.2 provides, in relevant part, as follows: Rule :1.035.2 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 NO. 2002-1458 CIVIL (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 product 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. In determining whether to grant a motion for summary judgment we must view the record in the light most favorable to the non-moving party. Erte/v. Patriot/Yews Co., 544 Pa. 93, 674 A.2d 1038 (1966). Summary judgment may only be granted in cases that are clear and free from doubt. Ex Re/. Hoffman v. Pe//ak, 764 A.2d 64 (Pa.Super. 2000). FACTUAL BACKGROU N D The facts are not in dispute. The defendants own real estate located in Southampton Township Cumberland County, Pennsylvania with improvements thereon erected known and numbered as 91 Sandbank Road. On IVlarch 22, 2000, they executed a note in the amount of $60,000 in favor of plaintiff. The note called for monthly payments to be made in the amount of $611.64 and was secured by a mortgage on the above real estate. Defendants have not made any payments since July 1, 2001. DISCUSSION Defendants concede that they are unable to make the monthly payments due on the note and mortgage. In fact, they raise that inability as their only NO. 2002-1458 CIVIL defense to this action. They contend that the note and mortgage are unenforceable because of plaintiff's "predatory lending practices''~. Defendants rely on the IVlortgage Bankers and Brokers and Consumer Equity Protection Act to support their position.2 Specifically, they rely on Section 512(b) which provides in relevant part: No lending without due regard to repayment ability.- A lender shall not engage in a pattern or practice of making covered loans based on the consumer's collateral without regard to the consumer's repayment ability, including, but not limited to, the consumer's current and expected income, current obligations as disclosed to the lender by the loan application and the consumer's credit report, employment status and other financial resources other than the obligor's equity in the dwelling which secures repayment of the loan. 63 P.S. § 456.512(b). However, Section 512 did not become law until June 25, 2002, more then two years after the transaction in question.3 Therefore, defendants' reliance is misplaced. Defendants have not cited, nor have we found, any other authority to support their position that plaintiff's alleged predatory lending practices operate as a defense to this action. Therefore, we have no alternative but to grant the instant motion for summary judgment. 1 Defendants' brief raises additional defenses, including plaintiff's failure "to provide defendants with a Federal Truth in Lending Statement and a Notice of Right of Recession". However, these defenses were not previously raised in the pleadings, nor are they supported by anything in the record as defined by Pa. R.C.P. 1035.1. Therefore, they cannot be considered by us in disposing of this motion. 2 63 P.S. § 456.101. 3 Section 512 was added to the Mortgage Bankers and Brokers and Consumer Equity Protection Act on June 25, 2001, "effective in one year." See 63 P.S. § 456.512. NO. 2002-1458 CIVIL ORDER OF COURT AND NOW, this day of APRIL, 2003, Defendants Notion for Summary Judgment in IVlortgage Foreclosure is GRANTED in the amount of $70,901.40 plus interest, late charges and costs. By the Court, Blair Kalish Adler, Esquire 1608 Walnut Street, Suite 300 Philadelphia, Pa. 19103-5446 James IV1. Robinson, Esquire 28 South Pitt Street Carlisle, Pa. 17013 sld /s/Edward E. Guido Edward E. Guido, _1.