Opinion
J-S41014-17 No. 2038 MDA 2016
08-16-2017
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee v. TERRENCE AND ANDREA RILEY, Appellants
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered November 23, 2016 in the Court of Common Pleas of Franklin County
Civil Division at No.: 2015 593 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellants, Terrence and Andrea Riley, appeal from the trial court's November 23, 2016 order granting the motion for summary judgment of Appellee, Federal National Mortgage Association. We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. ( See Trial Court Opinion, 2/09/17, at 0-2). Therefore, we have no reason to restate them.
On December 19, 2016, the trial court ordered Appellants to file a concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). On January 9, 2017, Appellants filed a timely Rule 1925(b) statement. See id. On February 9, 2017, the court filed an opinion that was a modified version of its November 23, 2016 opinion granting summary judgment. See Pa.R.A.P. 1925(a); ( see also Order of Court, 2/09/17, at unnumbered page 1).
The first page of the February 9, 2017 opinion is unnumbered, its second page is numbered page one. In the interest of simplicity, we will keep the trial court's numbering and designate the first page of the opinion as page zero.
We note that on page one of its opinion, the trial court incorrectly states the address of the property in question as 12417 Gilbert Road, rather than 13417 Gilbert Road. ( See Trial Ct. Op., at 1).
On appeal, Appellants raise the following issues for our review:
(I). Did the trial court err in entering summary judgment in favor of [Appellee]?(Appellants' Brief, at 23).
(II). Did the trial court correctly apply the Nanty-Glo Rule[] and is the "Anderson Affidavit" sufficient to demonstrate the absence of a genuine issue of material fact?
Borough of Nanty-Glo v. Am. Surety Co. of N.Y., 163 A. 523 (Pa. 1923). --------
We briefly note our standards of review.
Our scope of review of an order granting summary judgment is plenary. We apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact. We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered.
Motions for summary judgment necessarily and directly implicate the plaintiff's proof of the elements of his cause of action. Thus, a record that supports summary judgment will
either (1) show the material facts are undisputed or (2) contain insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the fact-finder. Upon appellate review, we are not bound by the trial court's conclusions of law, but may reach our own conclusions. The appellate court may disturb the trial court's order only upon an error of law or an abuse of discretion.Dibish v. Ameriprise Financial , Inc., 134 A.3d 1079, 1084-85 (Pa. Super. 2016), appeal denied, 141 A.3d 481 (Pa. 2016) (citation omitted). Moreover,
[t]he holder of a mortgage has the right, upon default, to bring a foreclosure action. The holder of a mortgage is entitled to summary judgment if the mortgagor admits that the mortgage is in default, the mortgagor has failed to pay on the obligation, and the recorded mortgage is in the specified amount.Bank of America , N.A. v. Gibson , 102 A.3d 462, 464-65 (Pa. Super. 2014), appeal denied, 112 A.3d 648 (Pa. 2015) (citations omitted).
Lastly, the Nanty-Glo Rule controls the use of oral testimony (either through affidavits or depositions) to determine the outcome of a case in motions practice. The Rule states ". . . the party moving for summary judgment may not rely solely upon its own testimonial affidavits or depositions, or those of its witnesses, to establish the non-existence of genuine issues of material fact." Dudley v. USX Corp., 606 A.2d 916, 918 (Pa. Super. 1992), appeal denied, 616 A.2d 985 (Pa. 1992) (emphasis added) (citation and footnote omitted). Three (3) factors determine the applicability of the Nanty-Glo Rule:
Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the [fact-finder] by resolving any material issues of fact. It is only when the third stage is reached that Nanty-Glo comes into play.DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 594-95 (Pa. Super. 2013) (citation omitted) (emphasis added). Therefore, in order for the Nanty-Glo Rule to apply in the instant matter, there must be a genuine discrepancy or dispute as to a material fact.
After a thorough review of the record, the parties' briefs, the applicable law, and the well-reasoned opinion of the trial court, we conclude that there is no merit to the issues Appellants have raised on appeal. The trial court opinion properly disposes of the questions presented. ( See Trial Ct. Op., at 7, 11-14) (finding that: (1) Appellants have failed to meet their burden to respond to the motion for summary judgment with evidence of record that would rebut Appellee's factual claims or establish a legal defense; (2) Appellants failed to establish the second prong of the Nanty-Glo applicability test because they did not demonstrate a discrepancy in any material fact; (3) Appellants only presented legal arguments in their pleadings which cannot create a dispute of material fact; and (4) Appellants wrongly sought relief under Nanty-Glo , because there was no factual dispute to which the trial court could apply the rule). Accordingly, we affirm based on the trial court's opinion.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/16/2017
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