Opinion
J-S07018-20 No. 2033 EDA 2018
03-23-2020
GREEN TREE SERVICING, LLC Appellee v. KARYN KERNS AND STEWART CRAWFORD Appellants
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered June 5, 2018
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 14-003867 BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J. MEMORANDUM BY KING, J.:
Retired Senior Judge assigned to the Superior Court.
Appellants, Karyn Kerns and Stewart Crawford, appeal from the order entered in the Delaware County Court of Common Pleas, which granted summary judgment in favor of Appellee, Green Tree Servicing, LLC ("Green Tree") in this mortgage foreclosure action. We affirm.
During the course of this litigation, Green Tree changed its name to Ditech Financial, LLC. For ease of discussion, however, we will continue to use the name Green Tree throughout this memorandum.
The relevant facts and procedural history of this case are as follows:
The initial complaint in this proceeding was filed on April 28, 2014. ... [Appellants] executed a mortgage on May 19, 2004, which was properly recorded in the office of the Recorder of Deeds in Delaware County. The mortgage identified the lender as America's Wholesale Lender and
identified "MERS" Mortgage Electronic Registration Systems, Inc., as acting nominee for lender and its successors and assigns as the mortgagee under the security agreement. The borrowers were identified as [Appellants] and their signatures appear on Page 15 of the mortgage. The Complaint averred that Green Tree was assigned the mortgage on June 12, 2013 from Mortgage Electronic Registration Systems, Inc. as nominee for America's Wholesale Lender. That assignment was also properly recorded in Delaware County Recorder of Deeds office. The Complaint averred that only [Appellant Crawford] executed the note on May 19, 2004 in the original [principal] amount of $180,000.00. The Complaint averred that interest, accumulated late charges, escrow, costs of suit and attorney's fees had been incurred since the default. Finally, the Complaint averred that proper notice of intention to foreclosure ("Act 6 Notice") 41 P.S. § 403 and notice of homeowner's emergency mortgage assistance ("Act 91 Notice") 35 P.S. § 1680.403(c) had been forwarded to [Appellants].
[Appellants] filed a series of Preliminary Objections in response to the Complaint. [Appellant Crawford] was admitted on May 22, 2006 to the Bar of the Commonwealth of Pennsylvania. On June 16, 2014, he filed, on behalf of [Appellant Kerns], now known as Karen M. Crawford, Preliminary Objections. On July 9, 2014, [Appellant Crawford] filed Preliminary Objections on his own behalf, and then on July 17, 2014 he filed amended/supplemental Preliminary Objections on behalf of [Appellant Kerns]. Green Tree answered the Preliminary Objections on July 7, 2014, and answered the amended Preliminary Objections on September 15, 2014. The Honorable Christine Fizzano Cannon, former Judge of the Court of Common Pleas of Delaware County, entered an order overruling the Preliminary Objections on October 16, 2014. [Appellants] then filed an Answer to the Complaint with New Matter and Counterclaim on November 7, 2014. [Appellants] asserted 103 averments in new matter, and pled twelve (12) counts in [their] counterclaim which included a Dragonetti claim, breach of contract, breach of good faith and fair dealing, consumer trade violations, recording law violations, criminal law violations, collection practice law violations, RESPA
violations, misrepresentation/fraud, unjust enrichment, "RICOH," corruption and negligence.
Green Tree responded through the Preliminary Objections. On March 11, 2015, Judge Fizzano Cannon sustained the Preliminary Objections and struck all counterclaims due to lack of specificity in failing to provide the material facts on which each of the counterclaims were based. The order was entered without prejudice to [Appellants] to file amended counterclaims within twenty (20) days of the Order. [Appellants] did not file any amended counterclaim. The case was formally assigned to Judge Fizzano Cannon in May 2015, and the initial scheduling order to the parties placed the proceeding on her trial term commencing September 8, 2015. Green Tree filed a Motion for Summary Judgment on July 17, 2015 which was answered on August 27th by [Appellants]. By order dated September 14, 2015, the Summary Judgment Motion was denied and trial was scheduled for September 29, 2015. The September 14th Order further provided that [Appellants] had raised before the [c]ourt the issue that Green Tree had failed to respond to their new matter. The [c]ourt noted that new matter was not stricken in the March 11, 2015 Order and that [Appellants were] granted leave to raise at trial objection to evidence offered by Green Tree in defense to a pleading that remained unanswered.
The dockets next reflect that four Motions in Limine were filed by [Appellants] and Green Tree responded with Objections based on untimeliness and in violation of the [c]ourt's scheduling Order. On October 7, 2015, Judge Fizzano Cannon entered an Order which granted Green Tree's Oral Motion for Leave of Court to Answer [Appellants'] New Matter nunc pro tunc. Both parties were also granted leave of [c]ourt to conduct discovery and a date certain for trial was established for February 22, 2016. The [c]ourt noted in Paragraph Six that the Motions in Limine were denied without prejudice to raise any evidentiary issues at trial. On December 30, 2015, [Appellants] filed a Motion to Deem the Request for Admissions Admitted or Motion to Compel Sufficient Responses. Green Tree filed a Motion for Summary Judgment and [Appellants] also filed a Motion for Partial Summary Judgment on January 5, 2016. After argument, Judge Fizzano Cannon on April 8, 2016 denied
each party's Motion for Summary Judgment. On April 13, 2016, the [c]ourt granted in part and denied in part [Appellants'] Motion to Compel and instructed Green Tree to file sufficient answers within twenty (20) days of the Court Order.
Green Tree, on April 27, 2016, filed a Petition for an Order of Corrected Foreclosure Notice. [Appellants] had raised a challenge to the notices attached to the Complaint because, although the document properly identified the parties and the default amount, the notice referenced a property at a different address. On August 23, 2016, Judge Fizzano Cannon granted Green Tree leave of [c]ourt to serve a corrected foreclosure notice and instructed Green Tree to file an amended complaint thereafter. The order also provided that upon receipt of the amended complaint, the [c]ourt would issue a revised Scheduling Order. [Appellants] filed, on September 13, 2006, a Motion for an Entry of an Order pursuant to Rule 237.1 (i.e. non-prosecution) which Green Tree timely answered. Judge Fizzano Cannon conducted argument and on October 24, 2016 denied [Appellants'] Motion. The amended complaint was filed on March 13, 2017. [Appellants] filed Preliminary Objections on April 3, 2017. Judge Fizzano Cannon overruled the Preliminary Objections on April 27, 2017. [Appellants], on June 26, 2017, filed an Answer with New Matter and Counterclaim to the Complaint. [Appellants] pleaded 442 averments in new matter. [Appellants] also included thirteen (13) counts in the counterclaim, which mostly mirrored the initial counterclaim but now included a claim for violation of loan interest and protection law/usury. [Green Tree] filed Preliminary Objections to the New Matter and Counterclaim. [Appellants] answered on November 13, 2017. Judge Fizzano Cannon sustained [Green Tree's] Preliminary Objections and struck the Counterclaims from the record. [Green Tree's] Preliminary Objections to New Matter were overruled. [Green Tree] was instructed to answer the New Matter and a non-jury trial was placed on the [c]ourt's January 29, 2018 term. Judge Fizzano Cannon was elected to the Commonwealth Court of Pennsylvania and commenced her position with that [c]ourt on January 1, 2018. [The Honorable Chad F. Kenney] was assigned Judge Fizzano Cannon's inventory and on February 13, 2018, an order was entered that a status hearing would be conducted
on March 22, 2018 as part of the call of the list. On March 20, 2018, [Green Tree] filed a Motion for Summary Judgment. On May 7, 2018, [Appellants] answered the motion. On June 5, 2018, this [c]ourt entered an order granting [Green Tree's] Motion for Summary Judgment and entered an in rem judgment against [Appellants] in the amount of $229,610.38.(Trial Court Opinion, filed August 24, 2018, at 1-5) (internal citations omitted). Appellants timely filed a notice of appeal on July 6, 2018. The court ordered Appellants on July 10, 2018, to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellants filed their Rule 1925(b) statement on July 30, 2018.
The certified docket entries confirm that Pa.R.C.P. 236 notice was not sent to the parties until June 6, 2018.
On March 27, 2019, Green Tree filed a notice of bankruptcy, and on April 4, 2019, this Court stayed the appeal. Green Tree filed an application to lift the stay on November 22, 2019. The application also noted that Appellant Crawford, who was representing himself and Appellant Kerns, is now deceased. On January 7, 2020, this Court entered an order indicating the appeal could be listed on the next available panel and requesting Appellant Kerns to file a response indicating whether she had retained new counsel. New counsel entered his appearance on behalf of Appellant Kerns on January 17, 2020, and this Court entered an order lifting the stay on the same day.
Appellant Kerns did not respond to this Court's inquiry regarding whether a personal representative of Appellant Crawford would be substituted as a party.
Appellants raise the following issues for our review:
WHETHER THE COURT COMMITTED REVERSIBLE ERROR AND/OR ABUSED ITS DISCRETION GIVEN THAT THE COURT: (1) APPEARS TO HAVE NOT READ [APPELLANTS'] FIFTY PAGE RESPONSE IN OPPOSITION TO [GREEN TREE'S] THIRD MOTION FOR SUMMARY JUDGMENT; (2) FAILED TO ADDRESS ANY OF THE MULTIPLICITY OF VALID DEFENSES RAISED BY [APPELLANTS] ON SUMMARY JUDGMENT; (3) DELVED INTO THE REALM OF THE TRIER OF FACT BY (LITERALLY) WEIGHING EVIDENCE AND ERRONEOUSLY OVERLOOKING EXHIBITS PLACED ON THE RECORD; (4) VIOLATED THE COORDINATE JURISDICTION RULE; (5) LACKED JURISDICTION DUE TO THE FAILURE OF [GREEN TREE] TO JOIN INDISPENSABLE PARTIES; (6) DID NOT HOLD ANY FORM OF HEARING WITH RESPECT TO THE SUMMARY JUDGMENT; [AND] (7) DEPRIVED [APPELLANTS] OF A RIGHT TO TRIAL[.](Appellants' Brief at 4-5).
WHETHER EARLIER DECISIONS OF THE COURT WERE LIKEWISE REVERSIBLE ERROR AND/OR ABUSE OF DISCRETION INCLUDING THE: [(1)] DISMISSAL OF [APPELLANTS'] COUNTERCLAIMS FILED PURSUANT TO PA.R.C.P. 1148; [(2)] FAILURE TO RULE UPON THE PRIOR FILED MOTIONS IN LIMINE; [(3)] DENIAL OF [APPELLANTS'] SEPTEMBER 13, 2016 MOTION FOR NON-PROSECUTION; [(4)] GRANTING OF [GREEN TREE'S] ORAL MOTION TO REOPEN THE PLEADINGS AND FILE A REPLY TO NEW MATTER (ON THE DAY OF THE FIRST SCHEDULED TRIAL IN 2015); [(5)] FAILURE TO CONDUCT AN INQUIRY INTO THE CHAIN OF TITLE ONCE THE PRESUMPTION OF OWNERSHIP HAD BEEN REBUTTED; [(6)] ALLOWING [GREEN TREE] TO EXPAND UPON THE AMENDED COMPLAINT, BEYOND WHAT WAS EXPRESSLY AUTHORIZED BY ORDER; [(7)] FAILURE TO DISMISS THE ACTION BASED ON THE ACT 91 DEFECTS; [AND (8)] ALLOWANCE OF [GREEN TREE] TO SPLIT THE NOTE FROM THE SECURITY INSTRUMENTS[.]
Our standard of review of an order granting summary judgment requires us to determine whether the trial court abused its discretion or committed an error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 347 (Pa.Super. 2006).
Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure.Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal citations omitted). Our scope of review is plenary. Pappas v. Asbel , 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In reviewing a trial court's grant of summary judgment:
[W]e 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. All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party.
Motions for summary judgment necessarily and directly implicate the plaintiff's proof of the elements of [a] cause of action. Summary judgment is proper if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. In other words, 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 and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Thus, a record that supports summary judgment either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense.Chenot v. A.P. Green Services , Inc., 895 A.2d 55, 61 (Pa.Super. 2006) (internal citations and quotation marks omitted).
Upon appellate review, we are not bound by the trial court's conclusions of law, but may reach our own conclusions.
Initially, appellate briefs must conform in all material respects to the briefing requirements in the Pennsylvania Rules of Appellate Procedure. Pa.R.A.P. 2101. When an appellant fails to raise or develop her issues on appeal properly, or where her brief is wholly inadequate to present specific issues for review, this Court can decline to address the appellant's claims on the merits. Butler v. Illes , 747 A.2d 943 (Pa.Super. 2000). See also Lackner v. Glosser , 892 A.2d 21 (Pa.Super. 2006) (explaining arguments must adhere to rules of appellate procedure and arguments which are not appropriately developed are waived; arguments not appropriately developed include those where party has failed to cite authority to support contention); Estate of Haiko v. McGinley , 799 A.2d 155 (Pa.Super. 2002) (stating appellant must support each question raised by discussion and analysis of pertinent authority; absent reasoned discussion of law in appellate brief, appellant hampers this Court's review and risks waiver).
Instantly, Appellants raise two issues on appeal which contain a total of fifteen subparts. In their appellate brief, however, Appellants seemingly address only five of these subparts: subparts four and five of issue one and subparts one, five, and eight of issue two. Appellants' failure to develop their other ten subparts on appeal with cogent argument prevents meaningful review of their claims and constitutes waiver of those issues. See Butler , supra.
With respect to the five arguments Appellants preserved, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Chad F. Kenney, we conclude these issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of those claims. ( See Trial Court Opinion, filed August 24, 2018, at 6-13) (finding: court rejected Green Tree's first two summary judgment motions because Appellants raised questions regarding authenticity or status of pleadings; Green Tree's amended complaint responded satisfactorily to all prior court inquiry such that no material factual disputes remained; prior case law has rejected Appellants' demands for other parties, such as Fannie Mae, to be joined in this proceeding; Appellants' counterclaims were improper because rules of civil procedure limit counterclaims to those that are part of or incident to creation of mortgage; Pa.R.C.P. 1148 does not allow defendants of in rem mortgage foreclosure proceeding to pursue action in personam for money damages via counterclaim; current trial jurist found no errors in prior jurist's orders entered between October 17, 2014 and November 14, 2017; court's review of record established no error in creation, recording, assigning, and noticing of mortgage and note; Appellants failed to establish any legitimate defense). The record supports the court's decision; therefore, we see no reason to disturb it. See Chenot , supra. Accordingly, we affirm.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/23/20
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