J-S54019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MIDFIRST BANK IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JEFFREY A. STACEY AND LISA RENE
STACEY A/K/A LISA R. STACEY
APPEAL OF: LISA RENE STACEY No. 637 MDA 2014
Appeal from the Judgment Entered March 3, 2014
In the Court of Common Pleas of Snyder County
Civil Division at No(s): CV-0132-2013
BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 28, 2014
Appellant, Lisa Rene Stacey, appeals from the March 3, 2014 in rem
judgment entered in favor of Appellee, Midfirst Bank (Midfirst), following the
review, we affirm.
The trial court summarized the relevant factual history of this case as
follows.
[On March 28, 2013, Midfirst] commenced this
action in mortgage foreclosure[ against Appellant
and her estranged husband, Jeffrey A. Stacey
(Defendant Stacey)]. In the [a]mended [c]omplaint,
Midfirst alleges the following: a) [Defendant Stacey
and Appellant] are the owners of real property
situated on 5351 Troxelville Road, Beavertown,
Snyder County; b) [o]n or about December 6, 2007,
[Appellant], individually and as power of attorney for
Defendant [] Stacey executed and delivered a
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[m]ortgage [n]ote and a real estate [m]ortgage in
the sum of $129,972.00 to USA Home Loans, Inc.; c)
the land subject to the [m]ortgage is the Beavertown
property referenced above; d) [e]ffective December
1, 2008, Midfirst is the assignee of the real estate
mortgage; e) [Appellant and Defendant Stacey] have
defaulted on the mortgage [by] having failed to
remit the installment payment due on September 1,
2012 and all subsequent installments; f) [t]he
amount due is $137,223.98 which includes an unpaid
principal balance, interest, late charges, escrow
Appellant and Defendant Stacey] the required Act 6
Notice of Intention to Foreclose and accelerate loan
balance on January 14, 2013; h) the [m]ortgage is
not subject to the notice provisions of Pennsylvania
Act No. 91 of 1983; and i) [Appellant and Defendant
Stacey] are not members of the Armed Forces.
Trial Court Opinion, 3/3/14, at 1-2.
On December 30, 2013, Midfirst filed a motion for summary judgment
against Appellant. By affidavit, Midfirst established the amounts of the
unpaid principal, interest, escrow deficit, late charges, property inspection
judgment motion and entered an in rem judgment in favor of Midfirst in the
amount of $143,549.92, together with interest calculated at the rate of
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$25.33 per diem from December 1, 2013. On April 1, 2014, Appellant filed a
timely notice of appeal.1
On appeal, Appellant raises the following issues for our review.
1.
judgment in error where Appellant [] did have
an issue of arguable merit, namely that
Defendant [] Stacey was obligated to pay on
the mortgage in issue and [Appellant] was not,
based on a separate order?
2.
judgment in error, as Appellant [] contended
the award of legal fees and there had been no
determination that those fees were reasonable
or customary?
We begin by noting our well-settled standard and scope of review.
us to determine whether the trial court abused its discretion or committed
an error of law[,] and our scope of revie Petrina v. Allied
Glove Corp., 46 A.3d 795, 797-798 (Pa. Super. 2012) (citations omitted).
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1
On April 2, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b) within 21 days. Appellant complied with this
order by filing a concise statement on April 22, 2014. In lieu of filing a
formal Rule 1925(a) opinion, the trial court indicated on April 29, 2014, that
it would be relying on the reasoning set forth in its March 3, 2014 opinion
Appellant filed
her appellate brief on June 23, 2014.
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all doubts as to the existence of a genuine issue of material fact must be
Barnes v. Keller, 62 A.3d 382,
385 (Pa. Super. 2012), citing Erie Ins. Exch. v. Larrimore, 987 A.2d 732,
issue as to any material fact and it is clear that the moving party is entitled
Id.
The rule governing summary judgment has been codified at
Pennsylvania Rule of Civil Procedure 1035.2, which states as follows.
Rule 1035.2. Motion
After the relevant pleadings are closed, but within
such time as not to unreasonably delay trial, any
party may move for summary judgment in whole or
in part as a matter of law
(1) 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, or
(2) 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.
Pa.R.C.P. 1035.2.
[O]ur responsibility as an appellate court is to
determine whether the record either establishes that
the material facts are undisputed or contains
insufficient evidence of facts to make out a prima
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facie cause of action, such that there is no issue to
be decided by the fact-finder. If there is evidence
that would allow a fact-finder to render a verdict in
favor of the non-moving party, then summary
judgment should be denied.
Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012) (citations
omitted), appeal denied, 65 A.3d 412 (Pa. 2013), citing Reeser v. NGK N.
Am., Inc., 14 A.3d 896, 898 (Pa. Super. 2011), quoting Jones v. Levin,
940 A.2d 451, 452 454 (Pa. Super. 2007) (internal citations omitted).
Initially, Appellant argues that the trial court committed an error of law
when it found no material issues of fact existed to preclude the grant of
at 7-8.
Specifically, Appellant asserts that a December 22, 2010 support order
established between her and Defendant Stacey raised a factual issue that
mandated a trial. Id.; see also
Judgment, 1/27/14, Exhibit A.2
in rem
pay a debt, summary judgment is proper where the [mortgagor] admits that
[s]he had failed to make the payments due and fails to sustain a cognizable
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2
[E]ffective
September 27, 2010, there is no child support awarded at this time;
however, [] Defendant [Stacey] shall continue to make the mortgage
payments on the marital home in the amount of $1,065.91 directly to the
Exhibit A.
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Krohn, 845 A.2d 855, 858 (Pa. Super. 2004), citing First Wis. Trust Co. v.
Strausser, 653 A.2d 688, 694 (Pa. Super. 1995). Herein, Appellant
[]1,
see also
Strausser, supra
are without information to form a belief as to the truth of averments as to
the principal and interest owning [within a mortgage foreclosure action]
3
Based upon this
admission, summary judgment in favor of Midfirst is appropriate unless
Appellant can sustain a cognizable defense to the mortgage foreclosure
action. See Krohn, supra.
Appellant presently alleges she is under no obligation to pay the
subject mortgage because of the support order issued by the family law
division of the Snyder Coun
7-
[the support order] should have allowed her to escape summary judgment
However, we have previously
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3
contains pagination. Therefore, we have assigned each page within these
pleadings a sequential page number for ease of reference.
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under the mortgage], and that the mortgagee should collect from that other
party before attempting to collect from this mortgagor, is a conclusion of law
which will not raise a genuine issue of a material fact in order to preclude
Strausser, supra at
Defendant Stacey was liable for
entitlement to summary judgment. See id. first
claim fails.
Appellant next contends the trial court erred when it awarded
4
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9.
It is well settled t
Citicorp Mortgage, Inc.
, 662 A.2d 1120, 1123
egal fees by looking
at the reasonableness of the award within the confines of the circumstances
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4
of $547.50. See
Affidavit of Kinders.
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of the particular case. Id., citing Fed. Land Bank of Baltimore v. Fetner,
410 A.2d 344, 347 (Pa. Super. 1979), cert. denied, Fetner v. Fed. Land
Bank of Baltimore, 446 U.S. 918 (1980). Our Court has previously held
foreclosure actions. Id.
awards following the grant of summary judgment in favor of a mortgagee.
See Citicorp, supra.
Within this appeal, Appellant concedes that her agreement with
engage in such a fee analysis without conducting a trial. Id. Specifically,
work that was extended against her estranged husband[, Defendant
Id. Despite this assertion, Appellant sets forth no further facts to
reasonable and customary. See id.
of the principal balance, to wit, $6,163.9
Judgment, 12/30/13, at 2. However, through an affidavit of a Midfirst Vice
President, Matt Kinders, the mortgagee swore that the legal fees it incurred
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as of December 19, 2013, totaled $3,050.00, consisting of foreclosure fees
of $1,300 and litigation fees of $1,750.00 (10 hours at $175.00 per hour).
by the mortgagee, i.e.
outstanding balance, we discern no error. See Citicorp, supra. Thus,
merit. Therefore, we affirm the March 3, 2014 judgment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2014
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