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Home My WebLink About2012-1554 DEUTSCHE BANK NATIONAL : IN THE COURT OF COMMON PLEAS OF TRUST COMPANY, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : KATHRYN INGLE f/k/a KATHRYN : ROSARIO AND RICHARD ROSARIO, : DEFENDANTS : 12-1554 CIVIL TERM IN RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J., MASLAND, J., and PLACEY, J. OPINION AND ORDER OF COURT Masland, J., March 18, 2013: -- Before the court is the Motion for Summary Judgment filed by Plaintiff, Deutsche Bank National Trust Company. After briefing by the parties and argument en banc, we grant the Motion for Summary Judgment in accordance with the following opinion. I. Introduction Deutsche Bank National Trust Company (Plaintiff) filed a complaint on March 12, 2012 against the above-named Defendants arising from a mortgage foreclosure on the property owned by Defendants. After filing of responsive pleadings and discovery, on October 24, 2012, Plaintiff filed a Motion for Summary Judgment averring that there are no issues of material fact and that Plaintiff is entitled to summary judgment on its mortgage foreclosure. Pl.’s Mot. for Summ. J. ¶ 17. II. Facts Plaintiff is a Trust Company acting as trustee for the Certificateholders of the Morgan Stanley ABS Capital I Inc. organized under the laws of California. Pl.’s Compl. ¶ 1. Defendants are the owners of real property located at 6 Mountain View Drive, 12-1554 CIVIL TERM Mount Holly Springs, Pennsylvania, 17065 (the Property). Id. ¶ 6; Def. Kathryn Ingle’s Resp. to Pl.’s Foreclosure ¶ 2. On November 3, 2004, Defendants executed a mortgage on the Property to lender Decision One Mortgage Company, LLC. Pl.’s Compl. Ex. A. However, only Defendant Rosario executed the Note on the Property. Pl.’s Mot. for Summ. J. Ex. A. On July 25, 2011, Decision One Mortgage Company, LLC assigned its interest under the mortgage on the Property to Plaintiff. Pl.’s Mot. for Summ. J. Ex. C. Plaintiff filed the instant foreclosure action on March 12, 2012. Pl.’s Compl. Plaintiff averred that Defendants have been in default on their mortgage payments since May 3, 2010. Id. ¶ 7. Defendant Ingle was served personally with the complaint on March 19, 2012. See Sheriff’s Return of Service, March 28, 2012. Defendant Rosario was served via certified mail and posting on his last known address on July 26, 2012 and July 30, 2012 respectively pursuant to a Court Order executed on May 18, 2012. See Aff. of Service, Sept. 7, 2012. Defendant Ingle filed a Response to Plaintiff’s Foreclosure on April 9, 2012 in which she admitted the mortgage was in default but denied that she was a mortgagor on the Property, averring that Defendant Rosario was solely responsible for the mortgage payment. Def. Kathryn Ingle’s Resp. to Pl.’s Foreclosure ¶¶ 2, 7. Defendant further averred affirmative defenses of laches and unclean hands. Id. ¶¶ 16, 17. On April 23, 2012, Plaintiff filed a Reply to Defendant’s New Matter. Pl.’s Reply to Def.’s New Matter. Plaintiff filed a Motion for Summary Judgment on October 24, 2012 seeking payments in the amount of $121,671.59 from Defendants with interest. Pl.’s Mot. for -2- 12-1554 CIVIL TERM Summ. J. Defendant Ingle filed a Response to the Motion on December 10, 2012 averring that the suit is not ripe for judgment because the Plaintiff had not addressed Defendant’s claims of unclean hands and laches and because Defendant was not on the promissory note. Def. Kathryn Ingle’s Resp. to Pl.’s Mot. for Summ. J. Defendant Ingle additionally filed a supplemental response to Plaintiff’s motion immediately prior to the argument on February 15, 2013 in which she argued that Defendant Rosario was not properly served. Def.’s Mem. of Law. III. Discussion A. Standard of Review Summary judgment is properly granted only where the pleadings, depositions, answers to interrogatories, and affidavits establish there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa. R.C.P. No. 1035.1. The moving party carries the burden of demonstrating that a genuine issue of fact does not exist and that the moving party is entitled to judgment as a matter of law. Hower v. Whitmak Assoc., 538 A.2d 524 (Pa. Super. 1988). After having been served with a motion for judgment, a nonmoving 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” in which the nonmoving party identifies the issue of material fact arising from the record. Pa. R.C.P. No. 1035.3. In considering the merits of a motion for summary judgment, we view the record in the light most favorable to the non-moving party and resolve all doubts as to the presence of a genuine issue of material fact against the moving party. Wilson v. El-Daief, 964 A.2d 354, 359 (Pa. 2009). -3- 12-1554 CIVIL TERM B. Plaintiff’s Motion for Summary Judgment Defendant Ingle contends that there is a genuine issue of material fact because she is not a party to the mortgage, specifically, because she did not sign the promissory note. However, in Pennsylvania, a person can execute a mortgage, providing property as security on a loan, without providing accompanying personal liability in the way of a promissory note. See Easton Theatres, Inc. v. Wells Fargo Land & Mortgage Co., 449 A.2d 1372, 1375 (Pa. 1982). Accordingly, a mortgage foreclosure does not enforce personal liability against a borrower, but is, rather, an in rem proceeding, recovering property for failure to pay a loan. See Insilico Corp v. Rayburn, 543 A.2d 120, 123 (Pa. Super. 1988). In the present case, Defendant Ingle concedes that the mortgage in question is in default. Defendant Ingle’s primary argument against the mortgage foreclosure is her averment that she is not a mortgagor on the property, and therefore, the Plaintiff cannot foreclose on the Property. Defendant Ingle’s contention rests on the fact that she did not sign the Promissory Note on the Property. However, Plaintiff has provided documentation establishing that Defendant Ingle signed the mortgage on the property. See Pl.’s Compl. Ex. A. Consequently, although Plaintiff cannot enforce personal liability against Defendant Ingle because she is not party to the Promissory Note, Plaintiff is still able to foreclose on the Property against Defendant as she is party to the mortgage. Therefore, because the evidence presented clearly demonstrates that Defendant Ingle is a party to the mortgage and that the mortgage is in default, Plaintiff has met its burden in showing that there is no genuine issue of material fact and that Plaintiff is entitled to judgment as a matter of law. -4- 12-1554 CIVIL TERM Finally, Defendant Ingle contends that Defendant Rosario would be denied due process if judgment were entered in this case because, allegedly, he was not properly served. First and foremost, Defendant Ingle lacks standing to raise a due process challenge on behalf of Defendant Rosario. See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004) (stating that a litigant cannot raise another person’s legal rights). Additionally, Plaintiff did attempt service on Defendant Rosario and, after numerous attempts at service failed, was granted leave of court to serve Defendant Rosario by regular and certified mail at his last known address. Plaintiff has provided an Affidavit of Service demonstrating service in compliance with the court order. Therefore, even assuming Defendant Ingle had standing to bring a due process challenge on behalf of Defendant Rosario, Defendant Ingle’s contention that Defendant Rosario would be denied due process by entrance of a judgment in this matter is without merit. IV. Conclusion For these reasons, we enter the following order granting Plaintiff’s motion. ORDER OF COURT AND NOW, this _________ day of March, 2013, Plaintiff’s Motion for Summary GRANTED Judgment is . Plaintiff is awarded in rem judgment against the Defendants for the foreclosure and sale of the mortgaged property. Plaintiff is further awarded judgment against Defendant Richard Rosario in the amount of $121,671.59 together -5- 12-1554 CIVIL TERM with interest at a rate of $19.0289 per diem from September 1, 2012 to the entry of judgment, plus costs and interests from the date of judgment as provided by law. By the Court, _________________________ Albert H. Masland, J. Andrew Markowitz, Esquire For Plaintiff Jason Arnold, Esquire For Defendant Richard Rosario Defendant -6- DEUTSCHE BANK NATIONAL : IN THE COURT OF COMMON PLEAS OF TRUST COMPANY, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : : V. : : KATHRYN INGLE f/k/a KATHRYN : ROSARIO AND RICHARD ROSARIO, : DEFENDANTS : 12-1554 CIVIL TERM IN RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BEFORE HESS, P.J., MASLAND, J., and PLACEY, J. ORDER OF COURT AND NOW, this _________ day of March, 2013, Plaintiff’s Motion for Summary GRANTED Judgment is . Plaintiff is awarded in rem judgment against the Defendants for the foreclosure and sale of the mortgaged property. Plaintiff is further awarded judgment against Defendant Richard Rosario in the amount of $121,671.59 together with interest at a rate of $19.0289 per diem from September 1, 2012 to the entry of judgment, plus costs and interests from the date of judgment as provided by law. By the Court, _________________________ Albert H. Masland, J. Andrew Markowitz, Esquire For Plaintiff Jason Arnold, Esquire For Defendant Richard Rosario Defendant