Loading...
HomeMy WebLinkAbout2010-1138 ONEWEST BANK, FSB : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : : : CIVIL ACTION - LAW KELLY M. KENES : Defendant : : No. 10-1138 IN RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, J., EBERT, J., and PLACEY, J. ORDER OF COURT th AND NOW , this 20 day of May, 2013, upon consideration of Plaintiff’s Motion for Summary Judgment, the parties’ briefs in support thereof, and following oral argument held on April 5, 2013, IT ISHEREBY ORDERED AND DIRECTED that Plaintiff’s Motion for Summary GRANTED Judgment is in Mortgage Foreclosure and judgment shall be entered in favor of Plaintiff in the amount of $262,564.56, together with interest at a rate of $44.18 per diem from August 31, 2012, to the entry of judgment, plus costs as provided by law. By the Court, ____________________ M.L. Ebert, Jr., J. Christine L. Graham, Esquire 123 South Broad Street, Suite 1400 Philadelphia, Pa 19109 Attorney for Plaintiff Kelly M. Kenes 104 East Marble Street Mechanicsburg, Pa 17055 Pro Se Defendant ONEWEST BANK, FSB : IN THE COURT OF COMMON PLEAS Plaintiff : OF CUMBERLAND COUNTY, : PENNSYLVANIA v. : : : CIVIL ACTION - LAW KELLY M. KENES : Defendant : : No. 10-1138 IN RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BEFORE GUIDO, J., EBERT, J., and PLACEY, J. ORDER AND OPINION OF COURT Ebert, J., May 20, 2013, In this civil case, Plaintiff has sued Defendant in Mortgage Foreclosure in the amount of $262,564.56. For the reasons set forth in this opinion, Plaintiff’s Motion for GRANTED. Summary Judgment is Statement of Facts and Procedural History On September 26, 2007, Defendant, Kelly M. Kenes, executed and delivered to IndyMac Bank, FSB (hereinafter “IndyMac”), a Federally Chartered Savings Bank, a Promissory Note (hereinafter “Note”) in the amount of $186,000.00 plus interest, in 1 consideration of a loan. Also on September 26, 2007, Defendant made, executed, and delivered a Mortgage as security for the loan to Mortgage Electronic Registration 2 Systems, Inc., as nominee for IndyMac. This Mortgage was recorded in the Office of 3 the Recorder of Deeds of Cumberland County at instrument number 200737944. The 1 Amended Complaint in Mortgage Foreclosure, filed May 3, 2010; ¶ 3 (hereinafter “Amended Complaint at __”); Exhibit A 2 Amended Complaint at ¶ 3; Exhibit A 3 Amended Complaint at ¶ 3; Exhibit A 1 land subject to the Mortgage is 104 East Marble Street, Mechanicsburg, Cumberland 4 County, Pennsylvania 17055. Defendant is the record owner of the land subject to the 5 Mortgage. The Mortgage was assigned to Plaintiff, OneWest Bank, FSB on February 6 17, 2010. This assignment was recorded in the Office of the Recorder of Deeds of 7 Cumberland County at instrument number 201005612 on March 5, 2010. Defendant defaulted on the Mortgage beginning on February 1, 2009, by failing 8 to make the required monthly payments of principal and interest due. Plaintiff sent the required combined Act 6 and Act 91 notice to Defendant by regular mail with a 9 certificate of mailing and by certified mail, return receipt requested. Plaintiff filed the Complaint on February 17, 2010, after Defendant failed to 10 reinstate or cure the amount due. Defendant filed Preliminary Objections to the initial Complaint and Plaintiff filed an Amended Complaint on May 3, 2010. Defendant filed Preliminary Objections to the Amended Complaint on July 27, 2010, and Amended Preliminary Objections on August 19, 2010. Defendant’s Preliminary Objections were 11 dismissed on October 15, 2010. Defendant filed a Motion for Reconsideration of the 12 Preliminary Objections, which was denied on November 3, 2010. On February 23, 4 Amended Complaint at ¶ 4 5 Answers with New Matter to Plaintiff’s Amended Complaint, filed August 29, 2011; ¶ 2 (hereinafter ”Answer at __”); See also Deed made Sept. 25, 2007 and recorded Oct. 2, 2007 with instrument number 200737943 6 Amended Complaint at ¶ 3; Exhibit B 7 Amended Complaint at ¶ 3; Exhibit B 8 Amended Complaint at ¶ 5; Exhibit D. Plaintiff acquired this Mortgage through Assignment after Defendant had defaulted on the Mortgage. 9 Amended Complaint at ¶ 7; Exhibit E 10 Complaint, filed Feb. 17, 2010 11 Order of Court, In Re: Defendant’s Preliminary Objections to Plaintiff’s Amended Complaint, J. Guido, filed Oct. 15, 2010 12 Order of Court, In Re: Reconsideration, J. Guido, filed Nov. 3, 2010 2 2011, Defendant filed a Motion to Dismiss. The Motion to Dismiss was stricken on July 13 25, 2011. Defendant then filed an Answer and New Matter to Plaintiff’s Complaint on August 29, 2011. In the Answer, Defendant admitted she was the record holder of the 14 property, yet denied the existence of the Note or Mortgage and any default. 15 Defendant additionally raised a fraud claim against Plaintiff as New Matter. Plaintiff filed a Reply to Defendant’s New Matter on September 19, 2011. Plaintiff then served a 16 Request for Admissions on Defendant on September 19, 2011. Defendant responded to Plaintiff’s Request for Admissions on October 19, 2011, and again denied the 17 existence of any Note, Mortgage, or default. Plaintiff then filed the instant Motion for Summary Judgment on January 18, 2013. Defendant filed an Affidavit in response to Plaintiff’s Motion for Summary 18 Judgment. In her Affidavit, Defendant contends that there are several material facts in dispute and summary judgment should not be granted. Discussion a. Standard of Review Summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions and affidavits on file demonstrate that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2(1), see also Weiner v. American Honda Motor, Co., 13 Order of Court, In Re: Plaintiff’s Preliminary Objections to Defendant’s Motion to Dismiss, J. Guido, filed July 25, 2011 14 Answers with New Matter to Plaintiff’s Amended Complaint, filed Aug. 29, 2011; ¶ 2, 5 (hereinafter “Answer”) 15 Answer; ¶ 10-71 16 See Plaintiff’s Motion for Summary Judgment, filed Jan. 18, 2013; ¶ 16 and attached Exhibit I (hereinafter “Summary Judgment”) 17 Summary Judgment at ¶ 17 and attached Exhibit J, ¶ 1-3 18 First Affidavit filed February 14, 2013; Amended Affidavit filed February 15, 2013. 3 718 A.2d 305, 307 (Pa. Super. 1998). The court must accept as true all well-pleaded facts in the non-moving party’s pleadings. Rosenberg v. Nicholson, 597 A.2d 145, 146 (Pa. Super. 1991). The court must also construe the facts in the light most favorable to the non-moving party and must resolve all doubts and reasonable inferences as to the existence of genuine issues of material fact in favor of the non-moving party. Talega v. Security Bureau, Inc., 719 A.2d 372, 374 (Pa. Super. 1998). The purpose of summary judgment is to avoid unnecessary trials and to “eliminate the waste of time and resources of both litigants where a trial would be a useless formality”. Curan v. Children’s Service Center of Wyoming County, Inc., 578 A.2d 8, 9 (Pa. Super. 1990). Specifically in a mortgage foreclosure action, summary judgment is proper where the mortgagor admits the mortgage is in default, he or she has failed to pay interest on the mortgage obligation, and that the recorded mortgage is in the specified amount. Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998)(internal citations th omitted); see also Citimortgage Inc. v. Nightingale, 6 Pa. D & C.5 375, 379 (Pa.Com.Pl. Lancaster 2008). Summary judgment is still proper even if the mortgagor does not admit the total amount of indebtedness. Cunningham, 714 A.2d at 1057. While this Court views the record in the light most favorable to the non-moving party, Pa.R.C.P. 1035.3 places a burden on the non-moving party to respond to a summary judgment motion. When seeking to avoid summary judgment, the non-moving party cannot rest merely upon the averments in the pleadings but must demonstrate a genuine issue for trial through affidavits, admissions, answers to interrogatories, or other specific factual evidence. Washington Federal Savings and Loan Association v. Stein, 515 A.2d 980, 981 (Pa. Super. 1986). If a party files an affidavit to supplement 4 the record and avoid the entry of summary judgment, the court may properly disregard the affidavit if it determines the affidavit is not “wholly credible”. Burger v. Owens Illinois, Inc., 966 A.2d 611, 620 (Pa. Super. 2009). In order to disregard the affidavit, the trial court must first “determine whether the information contained in the affidavit is inherently incredible”. Id. at 620-21. Additionally, the averments in a responsive pleading are deemed admitted when not denied specifically or by necessary implication. Pa.R.C.P. 1029. See also Cercone v. Cercone, 386 A.2d 1, 3 (Pa. Super. 1978). Any general denial or demands for proof have the effect of admissions. Pa.R.C.P. 1029(b). b. Analysis After a careful review of the pleadings, admissions, and affidavits this Court finds that summary judgment is proper. Defendant has admitted all material allegations in Plaintiff’s Complaint through either direct admissions or general denials. Defendant admits that she is the record holder of the property in question though she maintains 19 complete ignorance regarding the Note and Mortgage. However, Defendant puts forward no specific or well-pled facts to support her general denials regarding the existence of the Note and Mortgage. For example, Defendant presents no specific facts as to who, besides herself, would execute the Note and Mortgage on her property or how Defendant was able to finance the purchase of the property without executing the Mortgage. 19 Answer, ¶ 2 5 In fact, this Court’s records show that the Deed to the property was recorded on 20 the same day as the Mortgage, October 2, 2007. Therefore, Defendant can certainly respond to the averments regarding the Mortgage. As the record owner of the property, Defendant would be the only other person, besides Plaintiff, who would have information sufficient to respond to the averments concerning the Mortgage and whether any payments have been made. See New York Guardian Mortgage Corporation v. Dietzel, 524 A.2d 951, 952 (Pa. Super. 1987). Defendant’s general denials in response to the allegations contained in Plaintiff’s Complaint are deemed admissions. Therefore, Defendant has admitted that she executed the Mortgage, the Mortgage is in default, she has failed to pay interest on the Mortgage, and that the recorded Mortgage is in the specified amount. In an effort to supplement the record and avoid the entry of Summary Judgment, Defendant filed an Affidavit response setting forth what she has termed six “Material Facts in Dispute.” As best as this Court can ascertain, Defendant believes the issues of material fact to be: (1) that Plaintiff lacks standing because Plaintiff does not have the original Note, (2) that Defendant never executed any indebtedness documents to Plaintiff, (3) that all payments have not been credited to Defendant’s account, based on the fact that Plaintiff failed to attach the ledger, (4) the affidavit attached to Plaintiff’s Motion for Summary Judgment is defective and improper, (5) that Defendant never 21 executed a Note or Mortgage, and (6) this Court lacks in personam jurisdiction. This Court finds that Defendant’s Affidavit is not wholly credible and has properly disregarded it. SeeBurger, 966 A.2d at 620-21. It is inherently incredible that 20 Amended Complaint at ¶ 3, Exhibit A; See also Deed, recorded on October 2, 2007 with instrument number 200737943. 21 See Amended Affidavit, filed February 15, 2013. 6 Defendant, as record owner of the property, does not have any knowledge or information regarding who signed the Mortgage, who made payments on the Mortgage from 2007 to February 2009, or how she became the record holder of the property without executing the Mortgage. Defendant’s Affidavit does not seek to clarify any of these issues but merely continues to deny the existence of the Mortgage and Note. Since Defendant’s Affidavit is inherently incredible and puts forward no material facts showing a genuine issue, this Court has properly disregarded it. Therefore, because Defendant has admitted Plaintiff’s allegations and Defendant’s Affidavit is inherently incredible and has not put forth any specific factual evidence, there are no genuine issues of material fact and summary judgment is proper. This Court properly disregarded Defendant’s Affidavit as not being wholly credible and already determined that summary judgment is proper. Nevertheless, because of the high standard for granting summary judgment, this Court still carefully reviewed the matters raised in Defendant's affidavit that the Defendant claimed were material issues. Though she lists them as separate issues, in fact Defendant’s underlying 22 argument is the same for issues (1), (2), (4), and (5), supra. Defendant argues that Plaintiff does not have the original Note and Mortgage documents because Plaintiff has 23 failed to attach the original documents or show them to Defendant. Pa.R.C.P. 1019(i) states that “when any claim or defense is based upon a writing, the pleader shall attach a copy of the writing” (emphasis added). Plaintiff has complied with Rule 1019(i) and attached copies of the Note and Mortgage to both the Complaint and Motion for 22 See Amended Affidavit, filed February 15, 2013 23 See Amended Affidavit, filed February 15, 2013 7 Summary Judgment. Furthermore, Plaintiff has offered several times in the Reply to Defendant’s New Matter, to set up an appointment for Defendant to view and inspect 24 the original documents. Defendant has had ample time in which to take Plaintiff up on the offer to view the original Note. Prior to Plaintiff’s Motion for Summary Judgment, the last action taken in this matter was Defendant’s Reply to Request for Admissions on October 19, 2011. Defendant has had well over a year to conduct any discovery she deemed necessary. Defendant further contends there is a material issue because all payments made by Defendant have not been credited to Defendant’s account, issue (3). Plaintiff has 25 attached a copy of Defendant’s payment history to the Complaint. Defendant has not put forth any specific factual evidence to refute this payment history. Defendant finally contends that this Court does not have in personam jurisdiction, issue (6). An action in mortgage foreclosure is not an in personam proceeding, but rather an in rem proceeding, for the purpose of securing a judicial sale of the mortgaged 26 property. Pa.R.C.P. 1141; see also New York Guardian Mortgage Corporation v. Dietzel, 524 A.2d 951, 953 (Pa. Super. 1987). The property at issue is located within Cumberland County and this Court has proper jurisdiction. See Pa.R.C.P. 1142. Furthermore, Defendant has responded to pleadings and appeared in Court for argument and has therefore submitted to the jurisdiction of this Court. 24 See Plaintiff’s Reply to New Matter, filed September 19, 2011 25 Amended Complaint, ¶ 5, Exhibit D 26 The fact that a mortgage foreclosure is an in rem proceeding actually benefits Defendant because Defendant would not be personally liable for anything owed on the Mortgage beyond what the sale of the property covers. See Explanatory Comment to Pa.R.C.P. 1141. 8 27 Defendant also raised a Fraud claim as New Matter. Defendant’s claim for Fraud is also based on the fact that Plaintiff has not shown Defendant the original Mortgage documents, discussed supra. Defendant had attached an Affidavit of Lynn 28 Szymoniak, as an expert to her Answer and New Matter to support her Fraud claim. However, Ms. Szymoniak’s affidavit does not rest on specific facts of this matter, but only discusses her general knowledge of the mortgage servicing industry. Therefore, Ms. Szymoniak’s affidavit does not put forward any specific facts that show a material issue exists in this matter. It should also be noted that many of the issues Defendant raised as material issues were previously raised in Defendant’s Preliminary Objections. Defendant’s Preliminary Objections were dismissed on October 15, 2010, and again on November 3, 2010, after Reconsideration. It is fruitless for Defendant to repeat the same issues to support her claim of Fraud or to defeat Plaintiff’s Motion for Summary Judgment. While this Court sympathizes with Defendant’s situation, there is simply nothing of record supporting her argument that summary judgment should not be granted. Defendant has failed to put forward any well-pled or specific facts showing that a genuine issue of material fact exists. Accordingly Plaintiff’s Motion for Summary Judgment is granted and the following Order will be entered: ORDER OF COURT th AND NOW , this 20 day of May, 2013, upon consideration of Plaintiff’s Motion for Summary Judgment, the parties’ briefs in support thereof, and following oral argument held on April 5, 2013, 27 See Answer 28 Answer, ¶ 43; Ex. D-1. 9 IT ISHEREBY ORDERED AND DIRECTED that Plaintiff’s Motion for Summary GRANTED Judgment is in Mortgage Foreclosure and judgment shall be entered in favor of Plaintiff in the amount of $262,564.56, together with interest at a rate of $44.18 per diem from August 31, 2012, to the entry of judgment, plus costs as provided by law. By the Court, ____________________ M.L. Ebert, Jr., J. Christine L. Graham, Esquire 123 South Broad Street, Suite 1400 Philadelphia, Pa 19109 Attorney for Plaintiff Kelly M. Kenes 104 East Marble Street Mechanicsburg, Pa 17055 Pro Se Defendant 10