Opinion
3155 EDA 2022 J-A21025-23
01-11-2024
SANTANDER BANK, N.A. v. ANTONIO MALDONADO AND CARMEN BEATRICE ANTONGIORG F/K/A/ C BEATRICE MALDONADO A/K/A CARMEN BEATRICE MALDONADOAPPEAL OF: CARMEN BEATRICE ANTONGIORG
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Dated October 31, 2022 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2019-C-3130
BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.
MEMORANDUM
DUBOW, J.
Appellant Carmen Beatrice Antongiorg appeals from the October 31, 2022 Order entered by the Lehigh County Court of Common Pleas, granting summary judgment in this mortgage foreclosure action. After careful review, we affirm.
This case arises from a $38,000 Home Equity Line of Credit from Appellee Santander Bank, N.A. to Antonio Maldonado, which was secured by an August 2011 mortgage, executed by Appellant Carmen Beatrice Antongiorgi and Maldonado ("Mortgage"), encumbering property they owned in Lehigh County ("Property"). Appellant and Maldonado defaulted on the loan by failing to pay the monthly payments beginning on January 7, 2015.
In May 2019, Appellee sent Appellant and Maldonado the requisite Notices of Default and Intention to Foreclose. On October 22, 2019, Appellee filed its Complaint in Action of Mortgage Foreclosure ("Complaint"). Appellee claimed that Appellant and Maldonado defaulted on the Mortgage and owed $49,649.03, which included unpaid principal in addition to interest, fees and other charges itemized in Paragraph 9 of the Complaint. Appellee served Maldonado in October 2019, but was unable to serve Appellant.
Neither the parties nor the trial court detail any activity between January 2015 and May 2019.
Maldonado has not responded to any filings in this litigation and has not appealed to this Court.
On October 29, 2019, the court entered an order staying the action and scheduling a conciliation/case management conference. When Appellant and Maldonado failed to appear at the conference, the court lifted the stay on December 11, 2019, and provided Appellant and Maldonado 20 days to file an answer. Subsequently, Appellee filed a Motion for Special Method of Service after attempting unsuccessfully to locate Appellant. The court granted the motion on February 6, 2020, and Appellee served Appellant by mail on March 2, 2020 and by posting the Property on June 17, 2020.
In July 2020, Appellant filed a counseled Motion to Return Matter to the Mortgage Foreclosure Divergent Program, which the court granted on August 5, 2020, again staying the litigation. A year later, after a few conciliation/case management conferences, in which Appellant's counsel participated, the trial court entered the following order:
It is ordered that all proceedings remain stayed for 45 days, after which the stay is lifted, the case will be assigned to a judge for a status conference, [Appellant and Maldonado] may file an answer to the complaint within twenty (20) days of the lifting of the stay if no answer has been filed, and thereafter [Appellee] may proceed with judicial disposition, including the taking of a default judgment or Sheriff's sale, as may be appropriate under the Rules of Civil Procedure.Order, 7/15/21. Appellant did not file an answer within the permitted 65 days and, indeed, has never answered Appellee's Complaint in this matter.
On March 4, 2022, the court entered a case management order setting deadlines including a September 1, 2022 deadline for summary judgment motions. On August 31, 2022, Appellee filed a Motion for Summary Judgment. It asserted that the court should find that Appellant and Maldonado admitted all averments in the Complaint by failing to file an answer, and therefore, that there were no issues of material fact remaining. It attached an Affidavit of Default and Amount Due signed by Appellee's employee, with supporting documents detailing the payment history and the amounts due.
The next day, Appellant filed Preliminary Objections in the Form of a Motion to Strike Service of Plaintiff's Complaint by Certified Mail. Appellant erroneously claimed that the court had not authorized service by mail, seemingly overlooking the February 2020 Order permitting such service.
On September 30, 2022, Appellant filed a counseled response to Appellee's Motion for Summary Judgment ("Response") denying the allegations in the complaint and making unsupported factual assertions. She also argued that summary judgment was not appropriate because the pleadings remained open.
For example, she asserted that the parties entered into a "subsequent agreement" on December 16, 2016, which "modified the payment obligations[.]" Response, 9/30/22, at ¶¶ 4, 6. She provided neither details nor evidence of this alleged agreement.
On October 31, 2022, the trial court struck Appellant's Preliminary Objections as untimely. In the same order, the court granted summary judgment to Appellee and entered "in rem judgment of mortgage foreclosure" in favor of Appellee "in the amount of $49,639.03, together with continuing interest at the rate of $7.01 per day from October 21, 2019 on the unpaid principal balance; and for the sale of [the Property] in satisfaction of said judgment." Order, 10/31/22.
On November 30, 2022, Appellant filed her Notice of Appeal. In lieu of requesting a Pa.R.A.P. 1925(b) statement from Appellant, the trial court filed a Statement of Reasons Pursuant to [Pa.R.A.P.] 1925(a), dated December 2, 2022, referencing its October 31, 2022 Order and Opinion.
Before this Court, Appellant presents the following issues on appeal:
1. The trial court erred in granting summary judgment when the motion itself was filed at a time when the pleadings were not closed.
2. The trial court erred in granting complete summary judgment because there existed a genuine issue of material fact over the non-principal and interest damages given the contest over the credibility of the [Appellee's] affiant.Appellant's Br. at 7.
A.
When reviewing a trial court's grant of summary judgment, "[o]ur standard of review . . . is de novo[,] and our scope of review is plenary." Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa. 2011). We will reverse a grant of summary judgment where there has been an error of law or an abuse of discretion. Summer v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010).
"[S]ummary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Id. (citation omitted); see also Pa.R.Civ.P. 1035.2(1). Like the trial court, we view the facts of record and any reasonable inferences in a light most favorable to the non-moving party. Summer, 997 A.2d at 1159. In mortgage foreclosure cases, "the mortgage holder 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." Gerber v. Piergrossi, 142 A.3d 854, 859 (Pa. Super. 2016) (internal quotation marks and citation omitted).
"After the relevant pleadings are closed," a party may move for summary judgment "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[.]" Pa.R.Civ.P. 1035.2(1). A party responding to a summary judgment motion "may not rest upon the mere allegations or denials of the pleadings" but must, inter alia, identify "one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion" or "set forth the reasons why the party cannot present evidence essential to justify opposition to the motion[.]" Pa.R.Civ.P. 1035.3(a)(1), (b). Moreover, as applicable to this case, "[a]verments in a pleading to which a responsive pleading is required are admitted when not denied specifically[.]" Pa.R.Civ.P. 1029(b). Further, "[s]ummary judgment may be entered against a party who does not respond." Pa.R.Civ.P. 1035.3(d).
Regarding the timeliness of pleadings, "every pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading[.]" Pa.R.Civ.P. 1026. However, as occurred in the instant case, a court may extend the time for filing pleadings. Pa.R.Civ.P. 1003.
B.
In her first issue, Appellant argues that the trial court erred in granting summary judgment, claiming that the pleadings were still open when Appellee filed its motion in violation of Pa.R.Civ.P. 1035.2. Appellant's Br. at 11-12. She argues that Appellee filed its motion prematurely because neither Appellant nor Maldonado had filed an answer and Appellee had not obtained default judgment, which she claims would have closed the proceedings. Id. at 11. Appellant also cites to the fact that she filed preliminary objections the day after Appellee filed its Motion for Summary Judgment, which she views as evidence that the pleadings were not closed at the time Appellee filed for summary judgment. Id. at 11-12.
Appellant's argument is not supported by the record. As noted by the trial court, given that Appellant failed to answer the Complaint within the 65 days set by the court's July 2021 Order lifting the stay, the pleadings were closed when Appellee filed its Motion for Summary Judgment. See Tr. Ct. Op., 10/31/22, at 5. Moreover, the trial court properly struck as untimely Appellant's preliminary objections, which she filed nearly a year after the court's deadline for the answer and after Appellee's Motion for Summary Judgment, which was filed in compliance with the court's March 2022 scheduling order. In light of the stays granted in this case which extended Appellant's filing deadlines, Appellant's submission of untimely preliminary objections and her failure to file an answer are inexcusable.
Moreover, absent a response to the Complaint, the trial court properly deemed Appellant to have admitted the averments in the Complaint under Rule 1029(b). The court additionally pointed to Appellant's failure in her Response to Appellee's Motion for Summary Judgment to "identify evidence in the record establishing disputed facts or [to] supplement the record." Tr. Ct. Op. at 6. We agree with the trial court that the deemed-admitted averments in the Complaint met the requirements for summary judgment in a mortgage foreclosure action because Appellee pled that the mortgage was in default, Appellant failed to pay her obligation, and the Complaint set forth the amount due. Id. Accordingly, we conclude that the trial court did not err in granting summary judgment.
C.
In her second issue, Appellant claims that there is a question of material fact regarding the amounts due other than the principal and interest. Appellant's Br. at 12. She contends that Appellee improperly relied on hearsay evidence in the form of the affidavit attached to the Motion for Summary Judgment, without including "corroborating documents such as bills" to support the fees and charges. Id. at 13. Appellant observes that "summary judgment may not be entered where the moving party relies exclusively upon deposition testimony in order to establish that there is no genuine issue of material fact." Appellant's Br. at 12 (quoting Drapeau v. Joy Techs., Inc., 670 A.2d 165, 167 (Pa. Super. 1996)). She argues that given this disputed factual issue, the court should have granted partial summary judgment limited to the principal and interest.
The trial court did not expressly address this issue as it did not request that Appellant file a Pa.R.A.P. 1925 statement of errors complained of on appeal.
We conclude that Appellant's claim fails. Even assuming that the Affidavit was flawed, the trial court correctly deemed Appellant's failure to respond timely to the Complaint to constitute her admission to the averments in the Complaint, including the asserted fees and charges set forth in Paragraph 9.
Accordingly, we conclude that the trial court did not err or abuse its discretion in granting summary judgment in this mortgage foreclosure action.
Order affirmed.
Judgment Entered.