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Home My WebLink About2004-4893 Civil NEW CENTURY HOME EQUITY LOAN TRUS T SERIES 2003-4 ASSET- BACKED P ASS- THROUGH CERTIFICATES 210 Commerce Irvine, CA 92602 Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW APRIL YOUNG DWAYNEG. YOUNG A/K/A Duwayne G. Young: Mortgagor( s) and Real Owner( s) 290 Liberty Drive Shippensburg, P A 17253 Defendants NO. 04-4893 CIVIL IN RE: PLAINTIFF'S SECOND MOTION FOR SUMMARY JUDGMENT BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, 1., September 7, 2005. F or disposition in this mortgage foreclosure case is Plaintiff's Second Motion for Summary Judgment. Defendants opposed the initial motion on the ground that they had in fact tendered in a timely manner payments due to Plaintiff, but that those payments had been refused. 1 Plaintiff s initial motion for summary judgment was denied following oral argument, on February 4, 2004. Plaintiff s present motion is premised upon Defendants' failure to timely respond to ( a) interrogatories and a request for production of documents and (b) a 1 See Defendants['] Answer and New Matter to Plaintiffs Complaint in Mortgage Foreclosure, filed Nov. 3, 2004; Defendants' brief in opposition to Plaintiffs initial motion for summary judgment. requests for admissions. For the reasons stated in this opinion, Plaintiffs second motion for summary judgment will be denied and Defendants will be directed to file complete responses to Plaintiff s interrogatories, request for production of documents, and request for admissions, without objection, within twenty days. STATEMENT OF FACTS Plaintiff, New Century Home Equity Loan Trust Series 2003-4 Asset- Backed Pass-Through Certificates, filed a complaint in mortgage foreclosure against April Young and Dwayne G. Young, with respect to real property at 290 Liberty Drive, Shippensburg [Southampton Township], Cumberland County, Pennsylvania, on September 29, 2004. The complaint alleged (a) that Defendants were mortgagors by virtue of an instrument dated August 29, 2003, (b) that the subject of the mortgage was the property indicated above, (c) that Defendants failed to make the monthly payments on the mortgage after October 1, 2003, and (d) that the amount due to Plaintiff now totaled $129,915.24? Defendants filed a verified answer with new matter on November 3, 2004, claiming that Defendants had in fact tendered the payments as required up until January, 2004, but that Plaintiff had refused to accept the payments, and that thereafter Defendants had set aside the moneys due Plaintiff. 3 In its reply to new matter, filed November 29, 2004, Plaintiff denied that the said payments had been tendered as alleged, and demanded proof at trial as to any escrow-type scheme undertaken by Defendants.4 Plaintiff s first motion for summary judgment was filed on December 9, 2004. As indicated above, it was defended on the ground that a genuine issue of 2 Plaintiffs complaint, filed Sept. 29, 2004. The demand figure consisted of the principal balance on the mortgage ($112,500.00), interest ($10,371.24), attorney's fees ($5,625.00), late charges ($519.00), and costs of suit and title search ($900.00). 3 See Defendants['] Answer and New Matter to Plaintiffs Complaint in Mortgage Foreclosure, paras. 11,13-17,21. 4 Plaintiffs Reply to Defendants' New Matter, filed Nov. 29,2004. 2 material fact existed as to whether Defendants had m fact breached their obligations under the mortgage. 5 Thereafter, Plaintiff served interrogatories, a request for production of documents, and requests for admissions on Defendants on or about April 11, 2005.6 The former requested details and documentation as to Defendants' purported defense to Plaintiff s claim, 7 and the latter basically asked that Defendants admit the allegations of Plaintiff's complaint. 8 N either was timely responded to by Defendants. 9 However, no request for a court order to compel discovery was filed by Plaintiff. Plaintiff filed its second motion for summary judgment on June 8, 2005, premised upon Defendants' lapses with respect to the discovery deadlines. 10 Defendants filed an answer to the motion, reiterating their position that a genuine issue of material existed in the case, 1 1 and requested that any effect of their dilatoriness in responding to the request for admissions be withdrawn.12 Plaintiff s second motion for summary judgment was argued before the above court en banc on August 24,2005. 5 See Defendant's answer with new matter; Defendants' brief in opposition to Plaintiffs initial motion for summary judgment. 6 Plaintiffs Second Motion for Summary Judgment, filed June 8, 2005, para. 9; Defendant[s'] Answer to Plaintiffs Second Motion for Summary Judgment, filed Aug. 3,2005, para. 9. 7 Plaintiffs Second Motion for Summary Judgment, para. 9, Ex. E; Defendant[s'] Answer to Plaintiffs Second Motion for Summary Judgment, para. 9. 8Id. 9 Plaintiffs Second Motion for Summary Judgment, para. II; Defendant[s'] Answer to Plaintiffs Second Motion for Summary Judgment, para. II. 10 Plaintiffs Second Motion for Summary Judgment, paras. 12-13. 11 Defendant[s'] Answer to Plaintiffs Second Motion for Summary Judgment, paras. 1,6. 12 Defendants' Motion To Withdraw Admissions, filed Aug. 3,2005. 3 DISCUSSION With respect to Defendants' failure to timely respond to Plaintiff s interrogatories and request for production of documents, the following observation of the Pennsylvania Superior Court is instructive: In practice,... sanctions for failure to respond to discovery requests are generally not imposed until there has been a refusal to comply with a court order directing compliance. Linker v. Churnetski Transportation, Inc., 360 Pa. Super. 366, 373, 520 A.2d 502, 505 (1987). In the present case, where Plaintiff did not request a court order directing Defendants to respond to Plaintiff s interrogatories and request to production of documents, it would be inconsistent with the above general rule to base an award of summary judgment in Plaintiff s favor upon the absence of a timely response by Defendants to the interrogatories and request for production of documents. With respect to Defendants' failure to timely respond to Plaintiff s request for admissions, it is true, of course, that "[a] party upon whom requests for admissions of fact are served runs the risk that the facts as set forth in the request for admissions will be conclusively binding on him if he chooses not to file an answer to the request for admissions or file objections to the request." Innovate, Inc. v. United Parcel Service, Inc., 275 Pa. Super. 276, 283, 418 A.2d 720, 723 (1980). However, relief from the effect of deemed admissions is available upon motion under Pennsylvania Rule of Civil Procedure 40 14( d). Under this Rule, "the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the 4 admission fails to satisfy the court that withdrawal or amendment will prejudice him or her in maintaining the action or defense on the merits.,,13 Withdrawal of admissions should be granted where upholding the admission would practically eliminate any presentation of the merits of the case; where withdrawal would prevent manifest injustice; and where the party who obtained the admissions failed to prove that withdrawal would result in prejudice to that party. . .. The test of prejudice turns on whether a party opposing the withdrawal is rendered less able to obtain the evidence required to prove the matters which had been admitted. Dwight v. Girard Medical Center, 154 Pa. Commw. 326, 332-33, 623 A.2d 913, 916 (1993). Thus, in a case in which summary judgment is requested on the basis of deemed admissions, it is not uncommon for a trial court to direct the filing of an answer to the request before taking the dispositive step of awarding judgment without a trial. See, e.g., McCain v. Pennbank, 379 Pa. Super. 313, 549 A.2d 1311 (1988). In the present case, where the parties opposing the motion for summary judgment in a verified pleading asserted facts contrary to those requested to be admitted, the rule that "[ s ]ummary judgment may be entered only in cases that are clear and free from doubt," counsels such an approach. 14 Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this ih day of September, 2005, upon consideration of Plaintiff s Second Motion for Summary Judgment, and of Defendants' answer thereto and motion to withdraw admissions, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff s motion is denied, without prejudice to its right to file a new motion for summary judgment or motion for 13 Pa. RC.P. 4014(d). 14 McCain v. Pennbank, 379 Pa. Super. 313,318,549 A.2d 1311, 1313 (1988). 5 discovery sanctions, depending upon Defendants' actions m response to paragraph 3 hereof; 2. Defendants' Motion To Withdraw Admissions is granted, conditioned upon their compliance with paragraph 3 hereof; and 3. Within 20 days of the date of this order, Defendants shall respond fully, in verified form and without objection, to Plaintiff s interrogatories, request for production of documents, and requests for admissions. BY THE COURT, 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. David Fein, Esq. Lisa A. D'Angeli, Esq. Suite 5000 Mellon Independence Center 701 S. Market Street Philadelphia, P A 19106 Attorney for Plaintiff David H. Martineau, Esq. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Attorney for Defendants April and Dwayne Young 6 7 NEW CENTURY HOME EQUITY LOAN TRUS T SERIES 2003-4 ASSET- BACKED P ASS- THROUGH CERTIFICATES 210 Commerce Irvine, CA 92602 Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW APRIL YOUNG DWAYNEG. YOUNG A/K/A Duwayne G. Young: Mortgagor( s) and Real Owner( s) 290 Liberty Drive Shippensburg, P A 17253 Defendants NO. 04-4893 CIVIL IN RE: PLAINTIFF'S SECOND MOTION FOR SUMMARY JUDGMENT BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this ih day of September, 2005, upon consideration of Plaintiff s Second Motion for Summary Judgment, and of Defendants' answer thereto and motion to withdraw admissions, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1. Plaintiff s motion is denied, without prejudice to its right to file a new motion for summary judgment or motion for discovery sanctions, depending upon Defendants' actions in response to paragraph 3 hereof; 2. Defendants' Motion To Withdraw Admissions is granted, conditioned upon their compliance with paragraph 3 hereof; and 3. Within 20 days of the date of this order, Defendants shall respond fully, in verified form and without objection, to Plaintiff s interrogatories, request for production of documents, and requests for admissions. BY THE COURT, 1. Wesley Oler, Jr., 1. David Fein, Esq. Suite 5000 Mellon Independence Center 701 S. Market Street Philadelphia, P A 19106 Attorney for Plaintiff David H. Martineau, Esq. Lisa A. D'Angeli, Esq. 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Attorney for Defendants April and Dwayne Young