Opinion
J-S50018-16 No. 2236 MDA 2015
09-22-2016
CITIMORTGAGE, INC. Appellee v. STEVEN D. EBERLY AND KELLY L. EBERLY Appellants
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered November 30, 2015
In the Court of Common Pleas of Lancaster County
Civil Division at No: CI-12-05202 BEFORE: MUNDY, STABILE, and FITZGERALD, JJ. MEMORANDUM BY STABILE, J.:
Former Justice specially assigned to the Superior Court.
Steven D. Eberly and Kelly L. Eberly ("Appellants") appeal from the November 30, 2015 order entered in the Lancaster County Court of Common Pleas, granting summary judgment in favor of Appellee, Citimortgage, Inc. ("Citi"). Following review, we affirm.
November 30, 2015 is the day on which the clerk made the notation in the docket that notice of entry of the order was given as required by Pa.R.C.P. 236(b). Although the document itself bears a date stamp of November 25, the dockets reflects that notice of the order was not provided until November 30, 2015. Therefore, the date of entry of the order is November 30, 2015, rather than November 25, 2015 as the trial court and the parties suggest. See Pa.R.A.P. 108(b).
The trial court provided the following procedural and factual background:
On April 16, 2012, [Citi] initiated this action by filing a complaint in mortgage foreclosure. On May 16, 2012, [Appellants] filed an answer with new matter and counterclaim. On June 18, 2012, [Citi] filed various preliminary objections to the new matter and counterclaim. On May 15, 2013, the [c]ourt sustained [Citi's] preliminary objection to the factual insufficiency of [Appellants'] allegations that [Citi], as the assignee of [Appellants'] mortgage, is liable for the misconduct of an alleged agent of the mortgage assignor. (Trial court opinion, May [22], 2013).
On June 5, 2013, [Appellants] filed an amended new matter and counterclaim. On or about June 24, 2013, [Citi] filed preliminary objections again challenging the lack of factual sufficiency with
respect to [Appellants'] new matter and counterclaim. On December 31, 2013, the [c]ourt sustained the preliminary objection to the legal insufficiency of the amended new matter and counterclaim.Trial Court Opinion and Order, 11/30/15, at 1-2 (footnote omitted).
On February 7, 2014, [Appellants] filed a motion to certify interlocutory order for appeal with respect to the [c]ourt's December 31, 2013 order. On February 12, 2014, the [c]ourt denied the motion as untimely. On January 28, 2015, the [c]ourt issued a rule on [Appellants] to show cause why their demand for a jury trial should not be stricken. On March 30, 2015, the [c]ourt ordered that [Appellants'] demand for a jury trial be stricken with prejudice.
On June 3, 2015, [Citi] filed its motion for summary judgment with supporting documents and a brief. On July 7, 2015, [Appellants] responded. The motion was subsequently assigned to the [c]ourt for decision.
As the trial court explained in its opinion and order dated May 15, 2013, notice of which was provided to the parties on May 22, 2015 as reflected on the docket ( see n. 1), Appellants raised new matter asserting that Citi's claims were barred by accord and satisfaction. Trial Court Opinion, 5/22/13 at 2. Appellants also asserted a counterclaim alleging, inter alia, fraud on the party of OPFM, Inc., an entity that solicited Appellants to participate in an "equity slide down discount program." Id. Essentially, Appellants paid a large up-front sum to OPFM in exchange, they believed, for a better interest rate, shorter term, and lower monthly payment. They then made their lowered monthly payments to OPFM and signed a form instructing that any correspondence relating to the mortgage be directed to OPFM. Appellants sent their monthly mortgage payments to OPFM and OPFM apparently made the actual mortgage payments, using Appellants' payments supplemented by some of the large up-front sum received from Appellants. Appellants remained in the dark about the scheme and unaware that OPFM declared bankruptcy in 2007 until they were sued by Citi for defaulting on their actual mortgage. Before being sued, Appellants were under the impression that their mortgage had been paid in full, although they do not suggest that they ever received any documentation signifying that the mortgage was satisfied. See Trial Court Opinion and Order, 5/22/13, at 2-4 (quoting Jones v. ABN Amro Mortgage Group , Inc., 606 F.3d 119, 121-22 (3d Cir. 2010), another instance of the same perpetrators, led by Wesley Snyder, committing the same scheme).
The docket reflects that notice of entry of the December 31, 2013 order was given on January 7, 2014. Going forward, we shall refer to the order and its accompanying opinion using the January 7, 2014 date. See n. 1.
Again, the docket reflects the clerk's notation indicating that notice of entry of the order was given on January 7, 2014. See n. 1. As will be discussed infra, Appellants had until February 6, 2014 to file a motion to certify the interlocutory order for appeal, see Pa.R.A.P. 1311(b), but did not file their motion until February 7, 2014.
Following the trial court's November 30, 2015 grant of Citi's motion for summary judgment, Appellants filed this timely appeal. Both Appellants and the trial court complied with Pa.R.A.P. 1925. Appellants now present the following three issues for this Court's consideration:
1. Was Citi entitled to have [Appellants'] New Matter and Counterclaim dismissed when Citi was admittedly the
assignee of the mortgage, [Appellants] pled Citi was also the successor by merger, [Appellants] pled 11 specific facts of an agency relationship, and [Appellants] pled they paid the mortgage in full to the servicer of the mortgage?Appellants' Brief at 4.
2. Were [Appellants] entitled to a substantive review of its (sic) Motion to Certify Interlocutory Order for Appeal when it was filed with (sic) the time allowed under the Rules of Appellate Procedure?
3. Was Citi entitled to the entry of summary judgment when [Appellants] did not specifically admit facts, but instead denied them which created a genuine dispute as to material facts?
Appellants' first issue challenges the trial court's grant of Citi's preliminary objections to Appellants' new matter and the dismissal of Appellants' counterclaim. As such, our standard of review is de novo and our scope of review is plenary. Trexler v. McDonald's Corp., 118 A.3d 408, 412 (Pa. Super. 2015). "We must determine whether the trial court committed an error of law." Id. (citation omitted).
In its May 22, 2013 opinion and order, the trial court addressed the grant of Citi's preliminary objections to Appellants' original new matter and counterclaim. The trial court recognized its obligation to "generally accept as true all well and clearly pleaded facts, together with such reasonable inferences as may be drawn from those facts, but not the pleader's conclusions or averments of law." Trial Court Opinion and Order, 5/22/13, at 6 (citation omitted). The trial court acknowledged that preliminary objections seeking dismissal of a cause of action "should be sustained only in cases that are clear and free from doubt." Id. "The question presented by a demurrer is whether, on the facts averred, the law says with certainly that no recovery is possible. Any doubt as to whether a demurrer should be sustained should be resolved in favor of overruling the demurrer." Id. at 6-7 (citation omitted).
The trial court then examined Appellants' new matter and counterclaim and determined Appellants failed to plead facts to support their assertion that Citi, as successor to original mortgagee LoanCity.com ("LoanCity"), was responsible for LoanCity's liabilities. Id. at 7. Further, Appellants' complaint failed to plead facts to establish that OPFM was acting as LoanCity's agent or loan servicer. Therefore, Citi could not be held liable under an agency theory or under the Uniform Trade Practices and Consumer Protection Law, the Real Estate Settlement Procedures Act, or the Mortgage Satisfaction Act.
73 P.S. § 201-1 et seq., 12 U.S.C.A. § 2601 et seq., and 21 P.S. § 721-1 et seq., respectively.
Our review leads us to the same conclusion reached by the trial court for the reasons explained by the trial court in its May 22, 2013 Opinion and Order summarized above. Therefore, we find the trial court did not err in sustaining Citi's preliminary objections and we adopt and incorporate herein by reference the trial court's May 22, 2013 Opinion and Order.
In the order accompanying the May 22, 2013 opinion, the trial court granted Appellants twenty days to file an amended new matter and counterclaim. Appellants did so on June 5, 2013. Citi again filed preliminary objections in the nature of a demurrer. The trial court reviewed Appellants' amended pleading and again concluded that Appellants failed to plead sufficient facts to meet their burden that Citi was successor by merger to LoanCity. Trial Court Opinion and Order, 1/7/14, at 5-6. Further, Appellants failed to plead sufficient facts to support a finding that LoanCity performed any action with regard to the fraudulent loan to support a claim that OPFM was LoanCity's agent. Again, our review of the pleadings supports the trial court's determination and we conclude the trial court did not err in sustaining the preliminary objections. Therefore, we adopt and incorporate herein by reference the trial court's January 7, 2014 Opinion and Order sustaining Citi's preliminary objections to Appellants' amended new matter and counterclaim.
In their second issue, Appellants contend they were entitled to a substantive review of their motion to certify the trial court's interlocutory January 7, 2014 order. However, the record confirms the motion was not timely filed. Again, the order sustaining Citi's preliminary objections to Appellants' amended new matter and counterclaim was entered on January 7, 2014. Pursuant to Pa.R.A.P. 1311(b), a motion seeking interlocutory review must be filed within 30 days of entry of the order. In this case, Appellants had until February 6, 2014 to file their motion but did not do so until the following day, February 7, 2014.
Appellants assert they were entitled to an additional three days to file their motion under Pa.R.A.P. 121(e) because the January 7, 2014 order was served by mail. Rule 121(e) provides:
Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon that party (other than an order of a court or other government unit) and the paper is served by United States mail or by commercial carrier, three days shall be added to the prescribed period.Id. (emphasis added). Appellants ignore the specific language of Rule 121 that carves out an exception for service of court orders. Appellants' second issue fails.
In their third and final issue, Appellants challenge the trial court's grant of summary judgment, claiming they did not specifically admit facts alleged in Citi's complaint but instead denied them, creating a genuine issue as to material facts. As a challenge to the grant of summary judgment, we must "determine whether the trial court abused its discretion or committed an error of law[,] and our scope of review is plenary." Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 (Pa. Super. 2015). Further,
[w]hen considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in a light most favorable to the non-moving party. In so doing, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party, and, thus, may only grant summary judgment where the right to such judgment is clear and free from all doubt.Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (internal citations and quotation marks omitted). "[F]ailure of a nonmoving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law." Rodriguez , 111 A.3d at 1193 (citation omitted). Finally, we will reverse the trial court only if we discern an error of law or abuse of discretion. Summers , 997 A.2d at 1159.
As Citi correctly recognized:
Mortgage foreclosure actions are governed by Rules 1141-1150 of the Pennsylvania Rules of Civil Procedure, which provide that a mortgagee is entitled to relief where: (1) there is an obligation secured by a mortgage; and (2) the obligation is in default. Thus, summary judgment is proper in a mortgage foreclosure action where there is no genuine issue of material fact regarding the existence of the mortgage and the defendant's default thereunder.Citi's Brief at 21 (citing Cunningham v. McWilliams , 714 A.2d 1054, 1957 (Pa. Super. 1998); Gateway Towers Condo. Ass'n v. Krohn , 845 A.2d 855, 858 (Pa. Super. 2004)). Further, as the trial court noted:
A party cannot deny legitimately matters of public record. Strank v. Mercy Hospital of Johnstown , [102 A.2d 170, 171-72 (Pa. 1954)]. A party also may not deny matters of which he or she is deemed to have knowledge, and a party would know if he or she has made the mortgage payments and the amount owed. First Wisconsin Trust Co. v. Strausser , [653 A.2d 688, 692 (Pa. Super. 1995)].Trial Court Opinion and Order, 11/30/15, at 3 (additional citation omitted).
The trial court considered Appellants' assertions regarding their answer to Citi's complaint. In particular:
The complaint identifies the parties and alleges that [Appellants] are the mortgagors and owners of the real property subject to the mortgage. (Compl., ¶¶ 1-2). [Appellants] admit the identity of the parties but deny, as a conclusion of law, that they are the mortgagors and owners of the real property subject to the mortgage. (Ans., ¶¶ 1-2). This general denial of an averment of fact has the effect of an admission. Pa.R.C.P. 1029(b). [Appellants] may not deny matters of which they are deemed to have knowledge. Therefore, [Appellants] have admitted that they are the owners and mortgagors of the real property subject to the mortgage.Id. at 5 (citations omitted).
The complaint also alleges that on April 9, 2003, [Appellants] executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc., as nominee for LoanCity.com, which is recorded with the Recorder of Deeds Office for Lancaster County. (Compl., ¶ 3). [Appellants] admit that they executed a mortgage on April 9, 2003, subject to the averments in their counterclaim, but deny the remainder of paragraph 3 of the complaint as conclusions of law and for lack of information.
The trial court found unavailing Appellants' continued assertions that they were victims of a fraud. Id. at 6. Despite their claims of fraud, Appellants simply failed to plead any facts to demonstrate that the original mortgagee, LoanCity, consented to the scheme or was even aware of it. Further, they failed to plead any agency relationship between LoanCity and OPFM, the "purported agent" that perpetrated the fraud. Id. Consequently, the trial court concluded:
[Appellants'] response to paragraph 3 must be taken as an admission. They cannot deny matters of public record for lack of information nor can these allegations be fairly considered to be
legal conclusions. Therefore, [Appellants] have admitted executing a mortgage in favor of Mortgage Electronic Registration Systems, Inc., as nominee for LoanCity.com. The mortgage and note, dated April 9, 2003, and identifying [Appellants] and the premises were submitted by [Citi] in support of the motion for summary judgment. Also attached to the motion for summary judgment is a recorded copy of the assignment.Id. at 6-7 (references to record omitted).
The trial court continued its analysis of Appellants' answer to Citi's complaint and determined that Appellants' denial of the property description as a "conclusion of law" had the effect of an admission, as did their denials as "conclusions of law" the allegation that payments were due and unpaid. Further, the trial court determined that Appellants could not deny amounts due on the mortgage for lack of knowledge in light of the fact they were parties to the mortgage. Id. at 7. Therefore, the denial of unpaid amounts was deemed admitted for lack of proper denial of the allegations. Id. at 8. "[Appellants], of all people, would know if the mortgage payments were made to [Citi] or its assignor. [Citi] has attached proof of non-payment and [Appellants] have failed to offer any evidence to the contrary that would create a genuine issue of material fact concerning payment history." Id.
The trial court also noted that Appellants' attempted reliance on "facts" asserted in their counterclaim was misplaced. Appellants' counterclaim failed to establish any liability on LoanCity as assignor of the mortgage or on Citi as assignee and, again, failed to establish any agency relationship between the perpetrator of the scheme and LoanCity or Citi, as reflected in the trial court's ruling. Id.
Our review of the record leads us to conclude that there are no genuine issues of material fact regarding either the existence of the mortgage or Appellants' default thereunder. As stated above, summary judgment is proper in a mortgage foreclosure action when there is no genuine issue of material fact regarding the existence of the mortgage and the mortgagors' default thereunder. See Cunningham and Gateway Towers , supra. We find no error of law or abuse of discretion on the part of the trial court in granting summary judgment in favor of Citi and, therefore, we shall not disturb its November 30, 2015 order. We hereby adopt and incorporated by reference the trial court's November 30, 2015 Opinion and Order.
We note the Appellants' Rule 1925(b) statement included two additional subparts to their third issue, one raising an issue concerning the affidavit attached to Citi's summary judgment motion and another concerning "evidence" of the pay off of their mortgage, i.e., a copy of their check. They have not repeated those subparts in the third question presented in their brief on appeal, although they discussed them in their brief. Because these issues are not fairly suggested by the third issue as stated, we have not considered them. Pa.R.A.P. 2116(a). However, even they could be deemed suggested by the issue as framed, Appellants would not be entitled to relief. As the trial court recognized, "All of the [] information stated in the affidavit was alleged in [Citi's] complaint" and the trial court "did not err in merely making reference to this affidavit in its November [30], 2015 opinion." Rule 1925(a) Opinion, 2/11/16, at 6. Further, as the trial court observed, while Appellants claimed to have paid their mortgage in full and to have evidence of their payment, they did not produce evidence to support their claim and did not pursue any discovery in an effort to obtain such evidence. Id. at 6-7.
Finding no merit in any of Appellants' issues, we affirm the trial court's orders sustaining Citi's preliminary objections, the order denying Appellants' motion to certify the trial court's interlocutory order, and the November 30, 2015 order granting summary judgment in favor of Citi. In the event of further proceedings on the issue of the grant of preliminary objections, the parties shall attach copies of the trial court's May 22, 2013 and January 7, 2014 Opinions and Orders. In the event of further proceedings on the issue of the grant of summary judgment, the parties shall attach a copy of the trial court's November 30, 2015 Opinion and Order.
Order affirmed.
Judge Mundy did not participate in the consideration or decision of this case. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/22/2016
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