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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
MTGLQ INVESTORS, L.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DEREK F. D’ANGIOLINI AND :
DONNA H. D’ANGIOLINI, : No. 2731 EDA 2016
:
Appellants :
Appeal from the Order, August 2, 2016
in the Court of Common Pleas of Bucks County
Civil Division at No. 2010-06371
BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2017
Derek F. D’Angiolini and Donna H. D’Angiolini (collectively,
“appellants”) appeal pro se the August 2, 2016 order of the Court of
Common Pleas of Bucks County that granted the motion for summary
judgment of Ditech Financial, LLC t/d/b/a Green Tree Servicing LLC 1 and
entered a judgment in favor of appellee and against appellants in the
1
The action was initially filed by the then mortgagee GMAC Mortgage LLC.
Green Tree Servicing LLC (“Green Tree”) was substituted for GMAC Mortgage
on October 29, 2013, as mortgagee on October 29, 2013. On January 15,
2016, Ditech Financial LLC (“Ditech”) was substituted for Green Tree after
Green Tree merged with Ditech and changed its name to Ditech. After
judgment was entered and appellants appealed, MTGLQ Investors, LP
(“appellee”) was substituted as plaintiff and judgment was marked to
appellee’s use on October 6, 2016, as mortgagee under a recorded
assignment. On December 19, 2016, appellee filed an application for
substitution as appellee in this court. This court granted the application by
order dated January 23, 2017.
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amount of $484,517.38 plus interest from February 20, 2016 plus other
costs as provided by law. We affirm.
The relevant facts, as recounted by the trial court, are as follows:
On November 1, 2006, [a]ppellants made,
executed and delivered a mortgage and promissory
note to Mortgage Electronic Registration Systems,
Inc., as nominee for GMAC Mortgage, LLC d/b/a
DiTech.Com. The mortgage loan was to be repaid on
a monthly basis. The last monthly payment received
by [a]ppellee[2] was February of 2010. On June 24,
2010, [a]ppellee filed a Complaint in Mortgage
Foreclosure against [a]ppellants for their failure to
tender timely monthly mortgage payments due
March 1, 2010 and each month thereafter.
Pursuant to [a]ppellants’ enrollment in the
Bucks County Mortgage Foreclosure Diversion
Program, a Conciliation Conference was scheduled
for September 13, 2010. Appellants failed to attend
this Conference due to claimed illness. A second
conference was scheduled for January 10, 2011.
Appellants again did not appear. In light of
[a]ppellants’ repeated failure to appear, on
January 12, 2011, this Court entered an order
authorizing [a]ppellee to obtain a judgment by
default pursuant to Pa. R.C.P. 237.1 and to
otherwise proceed with the action as provided by
rules of court.
On August 4, 2010, [a]ppellant Derek
D’Angiolini filed Preliminary Objections to
[a]ppellee’s Complaint. On January 28, 2011,
[a]ppellee filed a Response to [a]ppellant’s
Preliminary Objections. Appellant Derek D’Angiolini
filed an Answer on February 25, 2011. In his
Answer, appellant Derek D’Angiolini denied
paragraphs five and six of the Complaint, which aver
that the mortgage is in default and the amount due
2
References to “appellee” in the trial court’s opinion refer to the mortgagee
at the time.
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on the mortgage. Appellant demanded proof of
default and an accounting of payments made toward
the mortgage, but did not offer an amount
[a]ppellant believes is the correct balance due.
On March 30, 2011, [a]ppellee filed Preliminary
Objections to [a]ppellant Derek D’Angiolini’s
Preliminary Objections to Plaintiff’s Complaint. On
April 20, 2011, [a]ppellant Derek D’Angiolini filed a
Motion for Reconsideration and Petition for Stay,
which requested that this Court reconsider the
January 12, 2011 Order and provide a 120-day stay
of execution to enable the parties to enter into an
agreement under the federal Home Affordable
Modification Program.
On May 3, 2011, the Honorable Judge Scott
denied [a]ppellant’s Petition for Stay. Appellant
Derek D’Angiolini appealed the Order to the Superior
Court of Pennsylvania. On August 11, 2011, the
Superior Court quashed the appeal. On November 9,
2011, [a]ppellee filed Preliminary Objections to
[a]ppellant Derek D’Angiolini’s Preliminary Objections
to [a]ppellee’s Complaint.
On February 15, 2012, [a]ppellant
Donna D’Angiolini filed Preliminary Objections to the
Complaint. On October 12, 2012, this Court entered
an Order overruling and dismissing [a]ppellant
Donna D’Angiolini’s Preliminary Objections and
directed Appellants to file an Answer within twenty
days. On November 5, 2012, [a]ppellant
Donna D’Angiolini appealed the Order to the Superior
Court and the Superior Court quashed it on
March 26, 2013.
On December 4, 2012, [a]ppellant
Donna D’Angiolini filed an Answer. The Answer was
substantially the same as [a]ppellant
Derek D’Angiolini’s Answer, including denials of
paragraphs five and six of the Complaint. Appellant
Donna D’Angiolini similarly demanded proof of
default and an accounting of payments, but did not
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offer an amount [a]ppellant believes is the correct
balance due.
On January 14, 2016, the [a]ppellee filed a
praecipe for voluntary substitution of party plaintiff
pursuant to Pa.R.C.P. 2352 to substitute DiTech
Financial LLC f/k/a Green Tree Servicing LLC as
successor plaintiff. On May 2, 2016, [a]ppellee filed
a Motion for Summary Judgment. On May 31, 2016,
[a]ppellants filed an Answer to Appellee’s Motion for
Summary Judgment, New Matter and Motion to
Dismiss.[3] On July 20, 2016, [a]ppellee filed a Reply
to [a]ppellants’ New Matter and Motion to Dismiss.
On July 31, 2016, this Court entered an order
granting [a]ppellee’s Motion for Summary Judgment
and ordering an in rem judgment be entered in
favor of [a]ppellee and against [a]ppellants for
$484,517.38 plus ongoing per diem interest, and
other costs as provided by law. The Appellants then
filed a notice of appeal to the Superior Court on
August 18, 2016. On September 8, 2016, this Court
ordered Appellants to file a concise statement of
errors.
Trial court opinion, 10/18/16 at 1-3 (citations to record omitted).
In their brief, appellants failed to include a Statement of Questions
Involved as required by Pa.R.A.P. 2111(a)(4) and Pa.R.A.P. 2116(a).
Pa.R.A.P. 2116(a) provides in pertinent part:
The statement of the questions involved must state
concisely the issues to be resolved, expressed in the
terms and circumstances of the case but without
unnecessary detail. The statement will be deemed
to include every subsidiary question fairly comprised
3
Appellant Derek F. D’Angiolini asserted in the motion to dismiss that Ditech
did not have capacity to sue because it did not hold a mortgage. Ditech
attached copies of the mortgage to its motion for summary of judgment and
attached a certificate of merger to its response to the motion to dismiss that
indicated that Ditech merged with Green Tree.
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therein. No question will be considered unless it is
stated in the statement of questions involved or is
fairly suggested thereby.
Pa.R.AP. 2116(a).
Although this court has the authority to dismiss claims raised in the
argument section of the brief that are not listed in the statement of
questions involved, this court, in the interest of justice, will address the
arguments that we can reasonably discern. See Commonwealth v.
Harris, A.3d , 2017 WL 499427 (Pa.Super. February 7, 2017).
In the argument section of their brief, appellants raise the following
two issues for this court’s review: “[1.] Did the Lower Court err in entering
an Order for Summary Judgment prior to addressing an Open
Pleadings [sic]? [2.] Under the Rules of Civil Procedure and Rules of
Appellate Procedure, is the entry of Summary Judgment, a Final Order?”
(Appellants’ brief at 5.)
This court reviews a grant of summary judgment under the following
well-settled standards:
Pennsylvania law provides that summary
judgment may be granted only in those
cases in which the record clearly shows
that no genuine issues of material fact
exist and that the moving party is
entitled to judgment as a matter of law.
The moving party has the burden of
proving that no genuine issues of
material fact exist. In determining
whether to grant summary judgment,
the trial court must view the record in
the light most favorable to the non-
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moving party and must resolve all doubts
as to the existence of a genuine issue of
material fact against the moving party.
Thus, summary judgment is proper only
when the uncontroverted allegations in
the pleadings, depositions, answers to
interrogatories, admissions of record,
and submitted affidavits demonstrate
that no genuine issue of material fact
exists, and that the moving party is
entitled to judgment as a matter of law.
In sum, only when the facts are so clear
that reasonable minds cannot differ, may
a trial court properly enter summary
judgment.
[O]n appeal from a grant of summary
judgment, we must examine the record
in a light most favorable to the
non-moving party. With regard to
questions of law, an appellate court’s
scope of review is plenary. The Superior
Court will reverse a grant of summary
judgment only if the trial court has
committed an error of law or abused its
discretion. Judicial discretion requires
action in conformity with law based on
the facts and circumstances before the
trial court after hearing and
consideration.
Gutteridge v. A.P. Green Services, Inc., 804 A.2d
650, 651 (Pa.Super. 2002).
Wright v. Allied Signal, Inc., 963 A.2d 511, 514 (Pa.Super. 2008)
(citation omitted). Summary judgment in mortgage foreclosure actions is
subject to the same rules as any other civil action. See Pa.R.C.P. 1141(b).
Initially, appellants argue that the trial court erred when it granted
appellee’s motion for summary judgment without addressing appellants’
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outstanding motions.[4] Appellants refer to a motion to dismiss which they
filed as a response to appellee’s motion for summary judgment. The
Pennsylvania Rules of Civil Procedure do not recognize a motion to dismiss
as a proper response to a motion for summary judgment. See
Pa.R.C.P. 1035.3(b). As a result, the trial court was not required to dispose
of that motion separately. Even if appellants had filed the motion to dismiss
as a separate document, the substance of the motion that Ditech did not
possess the mortgage and was not a proper party had no merit because an
assignment of mortgage recorded on February 1, 2013 which was recorded
in the Recorder of Deeds Office in Bucks County indicated that the mortgage
with the appellants had been assigned to Green Tree. This assignment was
attached to the motion for summary judgment. Further, it is clear from the
record that Ditech was the new name of Green Tree. Additionally, the grant
of the appellee’s motion for summary judgment would moot the motion to
dismiss.
Appellants next contend that the entry of the order granting summary
judgment was not a final order as contemplated by Pa.R.A.P. 341(b)
because it did not dispose of all claims and of all parties because the motion
to dismiss and the motion to enter judgment of default judgment were still
outstanding. This court has already determined that the motion was
4
In addition to the motion to dismiss, appellant Derek F. D’Angiolini moved
to enter judgment of default judgment due to appellee’s failure to timely
respond to the motion to dismiss.
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procedurally improper. While the trial court could have dismissed the
motions to make the disposition of the case clearer to appellants, the grant
of the summary judgment motion entered judgment against appellants and
in favor of appellee and was a final order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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