J-A17014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FEDERAL NATIONAL MORTGAGE : IN THE SUPERIOR COURT OF
ASSOCIATION : PENNSYLVANIA
:
Appellee :
:
v. :
:
LINDA BONNIE SCRIPNICENCU :
:
Appellant : No. 3039 EDA 2016
Appeal from the Judgment August 18, 2016
In the Court of Common Pleas of Bucks County
Civil Division at No(s): No. 2014-04415
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED August 8, 2017
Appellant, Linda Bonnie Scripnicencu, appeals from the summary
judgment entered in the Bucks County Court of Common Pleas, in favor of
Appellee, Federal National Mortgage Association (“FNMA”),1 in this mortgage
foreclosure action. We affirm.
In its supplemental opinion filed June 16, 2017, the trial court
accurately set forth the relevant facts and procedural history of this case.
Therefore, we have no reason to restate them.
Appellant raises four issues for our review:
____________________________________________
1
On March 13, 2017, FNMA filed a “substitution of successor” pursuant to
Pa.R.C.P. 2352, naming LSF9 Master Participation Trust as the successor
plaintiff in this case.
_________________________
*Retired Senior Judge assigned to the Superior Court.
J-A17014-17
DID THE COURT COMMIT AN ERROR OF LAW BY
GRANTING THE MOTION FOR SUMMARY JUDGMENT
AGAINST [APPELLANT?]
DID THE COURT COMMIT AN ERROR OF LAW BY FINDING
FOR [FNMA] DESPITE [ITS] FAILURE TO PRESENT PROPER
PROOF OF STANDING?
DID THE COURT COMMIT AN ERROR OF LAW BY
ALLOWING [FNMA] TO PROCEED EVEN WITHOUT GIVING
PROPER NOTICE GIVEN THE FACT [APPELLANT’S
HUSBAND] HAD PASSED AWAY?
DID THE COURT COMMIT AN ERROR OF LAW IN FINDING
FOR [FNMA] DESPITE [APPELLANT’S] SOUND ARGUMENTS
IN FACT AND LAW?
(Appellant’s Brief at 2).
Initially we observe:
Our scope of review of an order granting summary
judgment is plenary. We 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.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [its] 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. Thus, a record that supports
summary judgment will either (1) show the material facts
are undisputed or (2) contain insufficient evidence of facts
-2-
J-A17014-17
to make out a prima facie cause of action or defense and,
therefore, there is no issue to be submitted to the jury.
Upon appellate review, we are not bound by the trial
court’s conclusions of law, but may reach our own
conclusions. The appellate Court may disturb the trial
court’s order only upon an error of law or an abuse of
discretion.
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.
Where the discretion exercised by the trial court is
challenged on appeal, the party bringing the challenge
bears a heavy burden.
It is not sufficient to persuade the appellate court
that it might have reached a different conclusion
if…charged with the duty imposed on the court
below; it is necessary to go further and show an
abuse of the discretionary power. An abuse of
discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill will, as shown by the evidence or the
record, discretion is abused.
Lineberger v. Wyeth, 894 A.2d 141, 145-46 (Pa.Super. 2006) (internal
citations and quotation marks omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Robert O.
Baldi, we conclude Appellant’s issues merit no relief. The trial court opinion
comprehensively discusses and properly disposes of those questions. (See
-3-
J-A17014-17
Supplemental Trial Court Opinion, filed June 16, 2017, at unnumbered pages
5-10) (finding: (1) Appellant failed to deny FNMA’s allegations of default
with any specificity; there is no evidence that Appellant has made requisite
payments, and record contains no evidence contravening amounts FNMA
alleged are due and owing; instead of factually responding to FNMA’s
averments of default, Appellant responded with legal conclusion that
“proper” owner of note has not declared default; Appellant’s response does
not answer FNMA’s averment that mortgage is in default; Appellant is
charged with having sufficient knowledge upon which to lodge specific denial
with respect to FNMA’s averments of default; Appellant’s general denial to
default is insufficient to raise genuine issue of fact; Appellant produced no
evidence by way of affidavits, interrogatories, depositions, or other
substantiating documentation in support of her allegations; evidence
presented shows no genuine issue of material fact and summary judgment
in favor of FNMA was proper as matter of law; (2) FNMA produced evidence
that it was holder of mortgage; specifically, FNMA alleged in its complaint
that mortgage was assigned by SunTrust Mortgage, Inc. to FNMA by
assignment of mortgage recorded under instrument 2013091760; FNMA
produced copies of original recorded mortgage and its recorded assignment
to FNMA, as well as note; Appellant’s argument that FNMA cannot establish
ownership of note lacks merit; note produced by FNMA in this case identifies
Appellant’s deceased husband as “borrower” and Buyers Home Mortgage,
-4-
J-A17014-17
Inc. as “lender”; note was endorsed by Buyers Home Mortgage without
recourse to order of SunTrust; SunTrust, in turn, endorsed note without
recourse in blank; note endorsed in blank becomes payable to “bearer” and
may be negotiated by transfer of possession alone until specially endorsed;
as negotiable instrument, note entitles holder of note to enforcement of
obligation; based on FNMA’s ownership of mortgage and possession of note,
court properly concluded that FNMA had standing as real party in interest to
bring underlying foreclosure action; (3-4)2 Appellant’s remaining matters
are repetitious of her previously worded arguments that FNMA lacks
standing and that court erred by granting summary judgment in favor of
FNMA).3 Accordingly, we affirm on the basis of the trial court’s supplemental
opinion.
Judgment affirmed.
____________________________________________
2
Appellant’s specific claim raised in her third question presented, regarding
lack of notice, is waived for failure to preserve that claim in her Pa.R.A.P.
1925(b) statement. See Lineberger, supra (explaining general rule that
issues not raised in Rule 1925(b) statement are waived on appeal). To the
extent Appellant advances additional arguments on appeal that the trial
court did not discuss in its supplemental opinion, those issues are waived for
vagueness in Appellant’s Rule 1925(b) statement. See id. (stating concise
statement which is too vague to allow court to identify issues raised on
appeal is functional equivalent of no concise statement at all).
3
On July 13, 2017, this Court granted “Appellant’s Emergency Motion to
Stay Sheriff Sale,” and temporarily stayed the sheriff’s sale scheduled for
July 14, 2017, pending the outcome of this appeal. Due to our disposition,
we now lift the stay.
-5-
J-A17014-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2017
-6-
Circulated 07/11/2017 13
1.6
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Federal National Mortgage Association No.: 2014-04415
v.
Linda Scripnicencu 1
Case # 2014-04415-0062
11111
111
11627312
SUPPLEMENTAL OPINION Code' 5214 Judge:35
Patricia L. Bauhlie, Bucks County Prothonotary
Rcpt. 21605712 6116/2017 2:04:10 PM
I. Introduction
Defendant Linda Scripnicencu has appealed to the Superior Court of Pennsylvania
this Court's Order dated August 18, 2016, granting Plaintiff's Motion for Summary
Judgment wherein an in rem judgment was entered in favor of Plaintiff and against
Defendant, Linda Scripnicencu, in the amount of $244,522.38, together with interest, to
the date of Sheriff's Sale, and for foreclosure and sale of the mortgaged premises. We
file this supplemental opinion pursuant to the Superior Court's order and the Pennsylvania
Rule of Appellate Procedure (Pa.R.A.P.) 1925(a).
II. Factual and Procedural Background
Like many Mortgage Foreclosure cases, this particular case features a mortgage
which had been assigned several times after the mortgage was originally created. On
March 10, 2005, George Scripnicencu executed and delivered a Promissory Note to
Buyers Home Mortgage, Inc., in consideration for a loan made to him by Buyers Home
Mortgage, Inc., the principal loan amount of $228,000.00, plus interest. On March 10,
2005, George Scripnicencu and Linda Scripnicencu executed and delivered a mortgage
to Mortgage Electronic Registration System, Inc. ("MERS") as nominee for Buyers Home
. It ig wux rearomibibity
to notify all intketetki tttititS
of thi above ammo
Mortgage, Inc., in consideration for the loan made to George Scripnicencu. On April
15,
2014, George Scripnicencu passed away.
On February 4, 2010, the Mortgage was assigned by Mortgage
Electronic
Registration Systems, Inc. ("MERS") as nominee for Buyers Home Mortgage,
Inc. its
successors and assigns to SunTrust Mortgage Inc., by an Assignment of
Mortgage. The
Mortgage was thereafter assigned by SunTrust Mortgage Inc. to current Plaintiff
Federal
National Mortgage Association, by an Assignment of Mortgage, recorded in the Office
of
the Recorder of Deeds for Bucks County as Instrument Number
2013091760.
Plaintiff commenced this action by filing a complaint in mortgage foreclosure on
June 25, 2014.
Plaintiff filed its Motion for Summary Judgment on April 5, 2016, seeking judgment
in the amount of $244,522.38. The calculations were supported by Plaintiff's Affidavit of
Van Anderson, Foreclosure Specialist at Seterus, Inc., Plaintiff's authorized loan
servicer.
Defendant filed a response to the Motion on May 8, 2016. After studying the record,
and
the argument of the parties submitted in their respective briefs, the Court
entered its Order
granting Summary Judgment on August 18, 2016.
On September 16, 2016, Defendant filed a Notice of an Appeal.
Inexplicably
despite Counsel's certification of service which noted service through regular and
certified
mail, the undersigned did not receive said notice. The undersigned first
became aware
of the appeal on October 7, 2016, when the Superior Court's letter dated October 5,
2016
advising of the appeal was received by the undersigned's Chambers.
Thereafter the
undersigned issued an Order docketed on October 7, 2016, directing the Defendant
to
file a Concise Statement of Matters Complained Of no later than 21 days
from the date
of the Court's Order, with the further caveat that "Any issue not properly included in the
statement timely filed and served shall be deemed waived." A copy of the Court's Order
was immediately transmitted to the parties' attorneys, directly from the
undersigned's
Chambers.
The Prothonotary sent out the order on October 12, 2016. Defendant's Concise
Statement of Matters Complained was filed on November 2, 2016. Again, curiously,
despite counsel's certification of service which noted service through regular and certified
mail, the undersigned did not receive said Statement of Matters Complained of.1
Regardless, Defendant filed a Concise Statement on November 2, 2016, the date that the
statement was due. This Court did not enter the original opinion until we checked the
docket on November 2, 2016 and did not see any new filings. This Court filed the opinion
on November 3, 2016 without realizing that Defendant had filed their Concise Statement
because it had not yet appeared on the docket.
This Court applies all best effort to insure litigants have a fair and even playing
field to preserve and present issues on appeal. The litigants are expected to be truthful
to the Court and to timely apprise the Court of any grounds for appeal. The Court
does
not accept current counsel's assertion that he sent his Statement Of Matters Complained
Of to Chambers by certified mail. This is the second time Defendant's counsel has failed
to do so in this appeal and he has a history before another Judge in our Court of Common
Pleas of the same conduct. This Court invites counsel to file the certified receipt and/or
proof of delivery to correct the Court's assumption if the Court is mistaken.
1Counsel's Proof of Service is also incorrectly captioned as Deutsche Bank v M. Barry Lipson, et al,
Docket Number
2013-00262.
The undersigned is not the only Judge to notice counsel's perplexing history with
regards to orders from the Judiciary. This Court notes two opinions by Judge Simandle
of the United States District Court of New Jersey in which Counsel Joshua Thomas is
admonished by the Court for his failure to follow repeated instructions.2 A recent appeal
before Judge Rubenstein of our Court of Common Pleas had the same episode of
certification of service without actual service occurring. See Exhibit A, Deutsche Bank
National Trust vs. Kenneth Taggart.
Because of the Defendant's failure to follow proper procedures, the Court filed its
opinion on November 3, 2016, without realizing that Defendant's Concise Statement had
been filed. On June 6, 2017 the Superior Court remanded this case to the undersigned
in order to reach the merits of Defendant's appeal and ordered the Court to file a
supplemental opinion. We file this opinion pursuant to that order.
Ill. Statement of Matters Complained Of on Appeal
Defendant raises the following issues on appeal verbatim:
1. The Court committed an error by law by entering the motion for summary judgment
against Defendant
2 In Bounasissi v. N.Y. Life Ins. &
Annuity Corp., No. CV 15-7585 (185/15), 2016 WL 852483, at *2 (D.N.J. Mar. 4, 2016)
the Court stated:
"...the second time in this case that Plaintiffs' counsel, Joshua Thomas, Esq., has failed to submit a brief in
support of his motion for extraordinary relief, the requirement for which Mr. Thomas was previously explicitly
advised in the listing of deficiencies in this Court's prior Letter Opinion. [Docket Item 9 at p. 1.] Counsel has ignored
this advice. Plaintiffs' submission will not be construed as a brief because it fails to comply with L Civ. R. 7.2(b),
which requires, inter alia, a table of contents and a table of authorities, together with the party's legal arguments.
The Local Civil Rules are not an invitation to parties to submit whatever papers they please; they are rules that exist
for a reason, to assist the courts in the accurate and efficient adjudication of cases. Plaintiffs' counsel is hereby
warned explicitly to follow all applicable procedural rules or his motions may be denied on that basis alone."
In Bounasissi v. N.Y. Life Ins. & Annuity Corp., No. CV 15-7585 (1135/J5), 2016 W14697333, at *1 (D.N.1 Sept. 6, 2016)
the Court stated:
"...yet Plaintiffs' counsel, Joshua Thomas, Esq., failed to even attempt to cure the deficiency. This is the third
time Mr. Thomas has ignored his basic obligations under the Federal Rules of Civil Procedure in this case."
2. The Court committed an error of law by finding for the Plaintiff despite their failure
to present proper proof of standing
3. The Court committed an error of law by allowing Plaintiff to proceed even without
standing based on the evidence presented
4. The Court committed an error of law in finding for the Plaintiff despite Defendant's
sound arguments in fact and law
For reasons which will be set forth below, the undersigned believes that the
allegations of error, by the Defendant, are without merit. Based on the record presented
to the Court the Plaintiff established that the Defendant defaulted under the terms of the
mortgage, but in response the Defendant, through counsel, attempted to delay the entry
of the judgment attempting to invoke the protection of certain legal rules, which will be
discussed below.
IV. Discussion
a. The Court properly granted Summary Judgment
Defendant appears to argue that as a matter of law and because there was a
dispute of material fact, the court erred in granting summary judgment for the Plaintiff.
Summary judgment is properly granted where the pleadings, answers to
interrogatories, depositions, affidavits and admissions on file establish that there is no
genuine issue of material fact and that the moving party is entitled to judgment as a matter
of law. McConnaughey v. Building Components, Inc., 536 Pa. 95, 98 (Pa. 1994). Mere
conclusory allegations in pleadings without supporting factual evidence are not sufficient
to overcome a motion for summary judgment. Pape v. Smith, 323 A.2d 856, 858-859 (Pa.
Super. 1974) (noting that the adverse party may not claim that the averments of their
pleadings, alone, are sufficient to raise a genuine issue of fact so as to defeat a motion
for summary judgment). The non-moving party has the burden of "set[ting] forth specific
facts by way of affidavit or as otherwise provided in [Rule 1035], demonstrating that a
genuine factual issue exists." Liles v. Balmer, 567 A.2d 691, 692 (Pa. Super. 1989);
Younginger v. Heckler, 410 A.2d 340, 342 (Pa. Super. 1979) (holding that the adverse
party may not rest on the mere allegations or denials of his pleadings, but must respond
by evidence which sets forth specific facts showing that there is a genuine issue for trial).
In a mortgage foreclosure action, entry of summary judgment for a mortgagee is
proper if there is no genuine dispute that: (1) the mortgage is in default; (2) the mortgagor
failed to pay interest on the obligation; and (3) the recorded mortgage is in the specified
amount. Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super 1998) (citing
Landau v. Western Pennsylvania National Bank, 282 A .2d 335, 340 (Pa. 1971)). Further,
in actions for in rem foreclosure due to the defendant's failure to pay a debt, summary
judgment is proper where the defendant admits that he had failed to make the payments
due and fails to sustain a cognizable defense to the plaintiff's claim. See First Wis. Trust
Co. v. Strausser, 653 A.2d 688, 694 (Pa.Super.1995) (providing that summary judgment
is proper in mortgage foreclosure actions where the mortgagor admits the delinquency of
his mortgage payments).
This Court's decision to grant summary judgment in favor of the Plaintiff is proper
due to Defendant' admission that they are in default by failure to deny the allegation with
any specificity. See Defendant's Answer with New Matter, at 9 and 10. Averments in a
responsive pleading are deemed admitted when not denied specifically or by necessary
implication. Pa.R.C.P. 1029; Cercone v. Cercone, 386 A.2d 1, 3 (Pa. Super. 1978)
(finding defendant was required to specifically deny factual allegations in complaint
where
defendant is in position to know truth or falsity of allegation). A general denial or demand
for proof will be deemed an admission. Id. More specifically, in a mortgage foreclosure
action, the mortgagors, aside from the mortgagee or assignee, are the only
parties with
sufficient knowledge to base a specific denial. New York Guardian Mortgage Corp. v.
Dietzel, 362 Pa. Super. 426, 429, 524 A.2d 951, 952 (1987).
Defendant, in their Answer, admit paragraph 3 of the Complaint3, specifically the
identity of the surviving defendant and the legal description of the property. In
Paragraph
5, Defendant admits that George Scripnicencu executed a note with Buyer's Home
Mortgage. Defendant purported to deny paragraphs 9 and 10 of the Complaint4, which
aver the default and the amounts due on the Mortgage; however, there is no evidence
that payments have been made and the record contains no evidence contravening the
amounts due and owing. See Defendant's Answer with New Matter at 9 and 10.
Defendant instead of factually responding to the averments responded with legal
conclusions in her answer. Defendant answered with a legal conclusion that the proper
owner of the note has never declared a default, that response however, does not
answer
the averment that the mortgage is in default because the payments stopped.
Further
making the same denial again does not answer whether the charged amounts are due on
the mortgage. Accordingly, because Defendant are charged with having sufficient
3 "Admitted" See Defendant's Answer with New Matter at 3.
"Denied. There was never a default declared under the note by the mortgagee who is the
`i
"holder of the [Note],"
a "nonholder in possession of the [Note] who has the rights of a holder,"
or "a person not in possession of the
[Note] who is entitled to enforce the instrument pursuant to 13 P.S. §3309. Strict Proof is
demanded. See
Defendant's Answer with New Matter at 9 and 10.
knowledge upon which to base a specific denial with respect to averments contained in
paragraphs 9 and 10 of the Complaint, a general denial is insufficient to raise a genuine
issue of fact. Cercone v. Cercone, 386 A.2d 1, 3 (Pa. Super. 1978), City of Philadelphia
v. Hertler, 114 475, 482, 539 A2d 468, 472 (Pa. Cmwlth. 1988).
Unlike Plaintiff, Defendant produced no evidence by way of affidavits,
interrogatories, depositions or other substantiating documentation in support of her
allegations. Mere allegations, without supporting evidence are insufficient to prevent
summary judgment. Accordingly, this summary judgment was properly granted as the
pleadings and admissions on file show there is no genuine issue of material fact and that
the Plaintiff is entitled to judgment as a matter of law.
b. Whether the Court of Common Pleas erred in holding plaintiff as
having standing
Defendant argues that Plaintiff has never been the holder of the note and therefore
Plaintiff does not have standing. The implication of Defendant's argument is also that the
Plaintiff was not the real party in interest and lacked standing to bring this action.
In a mortgage foreclosure action, the mortgagee is the real party in interest. See
Wells Fargo Bank, N.A. v. Lupori, 8 A.3d 919, 922 n. 3 (Pa.Super.2010). The
Pennsylvania Rules of Civil Procedure governing actions in mortgage foreclosure require
a plaintiff in a mortgage foreclosure action specifically to name the parties to the mortgage
and the fact of any assignments. Pa.R.C.P. 1147. A person foreclosing on a mortgage,
must own or hold the note. This is so because a mortgage is only the security instrument
that ensures repayment of the indebtedness under a note to real property. See Carpenter
v. Longan, 83 U.S. 271, 275, 16 Wall. 271, 21 L.Ed. 313 (1872). A mortgage can have no
separate existence. Id. When a note is paid, the mortgage expires. Id. On the other hand,
a person may choose to proceed in an action only upon a note and forego an action in
foreclosure upon the collateral pledged to secure repayment of the note. See Harper v.
Lukens, 271 Pa. 144, 112 A. 636, 637 (1921) (noting "as suit is expressly based upon the
note, it was not necessary to prove the agreement as to the collateral.").
Here, Plaintiff produced evidence that it was the holder of the mortgage.
Specifically, Plaintiff alleged in its complaint that the "mortgage was assigned by SunTrust
Mortgage Inc., to Federal National Mortgage Associations, by Assignment of Mortgage
recorded...under Instrument 2013091760." (Complaint, 6/24/14 at ¶ 7.) Plaintiff produced
copies of the original recorded mortgage and its recorded assignment to Plaintiff as well
as the note. (Motion for Summary Judgment at Exhibit A -B).
Defendant's argument that Plaintiff cannot establish ownership of the note is
without merit. The note produced by Plaintiff in this case identifies Defendant's deceased
husband as the "Borrower" and Buyers Home Mortgage, Inc. as the "Lender." The note
was endorsed by Buyers Home Mortgage without recourse to the order of SunTrust
Mortgage, Inc. SunTrust Mortgage in turn endorsed the note without recourse in blank. A
note endorsed in blank becomes payable to "bearer" and may be negotiated by transfer
of possession alone until specially endorsed. See 13 Pa.C.S.A. §§ 3109(a), 3205(b). The
note as a negotiable instrument entitles the holder of the note to enforcement of the
obligation. See 13 Pa.C.S.A. §§ 3109(a). Because of Plaintiffs ownership of the mortgage
and possession of the note, this Court properly concluded that Plaintiff had standing as a
real party in interest to bring the underlying foreclosure action. Defendant has raised an
allegation of error that lacks merit.
Defendant remaining matters complained of are repetitions of their previously
worded arguments, specifically that no standing existed and that the Court erred in
granting summary judgment as there was a dispute of material fact. This Court has
addressed both the standing argument and whether a genuine dispute of material fact
existed. Therefore, we find that summary judgment was properly granted.
V. Conclusion
Thus, for all the above reasons, the Undersigned believes that Defendant's
allegations of error are without merit and that the August 18, 2016 Order was entered
properly.
Copies sent to:
Marc S. Weisberg, Esquire
McCabe, Weisberg & Conway, P.C.
123 South Broad Street, Ste. 1400
Philadelphia, PA 19109
Joshua L. Thomas, Esquire
1110 Pocopson Rd
PO Box 415
Pocopson, PA 19366
EXHIBIT A
IN THE COURT OF COMMON PLEAS
BUCKS COUNTY, PENNSYLVANIA
CIVIL DIVISION
DEUTSCHE BANK NATIONAL TRUST No. 2010-07592
COMPANY
v.
KENNETH TAGGART III
Case ft 2010-07592 B09 11475648
Code: 214 Ju 90:26
Patdei L. Bachlle,13 cksCounly Prothonotary
Rcpt 21671248 12/21/2016 9:56:11 AM
OPINION
Kenneth Taggart appeals this Court's Order of October 6, 2016, granting Deutsche Bank
National Trust Company's "Motion to Reinstate" their Complaint in Mortgage Foreclosure.
This matter commenced on July 27, 2010, with the filing of a Complaint in Mortgage
Foreclosure by Plaintiff, Deutsche Bank National Trust Company which asserts as
follows: Kenneth Taggart made, executed, and delivered a mortgage in favor of Mortgage
Electronic Registration Systems on September 15, 2006 in the amount of $374,935.24, recorded
in the Office of the Recorder of Bucks County, in Mortgage Book No. 5122, Page 1367. On July
13, 2010, the Mortgage was assigned to Deutsch Bank and recorded in Mortgage Book No. 6446,
Page 1322. Complaint in Mortgage Foreclosure, July 27, 2010 ¶ 3.
Deutsche Bank alleges that Taggart defaulted on the Mortgage beginning on March 1,
2009 and each month thereafter. Complaint ¶ 5. At the time of the filing of the Complaint, the
total amount due under the mortgage including costs was $423,253.32. Complaint ¶ 6.
On July 27, 2011, Taggart Tiled a "Notice of Removal" to the United States District Court
for the Eastern District of Pennsylvania, alleging that his Answer raised "federal questions,"
primarily under the Truth in Lending Act, warranting the exercise of jurisdiction by, the Federal
courts. Notice of Removal, July 27, 2011.
On October 27, 2011, the Honorable Mary A. McLaughlin of the United States District
Court of for the Eastern District of Pennsylvania remanded the case to the Bucks County Court of
Common Pleas in a sua sponte written Order.
On January 7, 2013, Taggart filed a Motion for Judgment on the Pleadings by filing the
requisite praecipe for judicial determination under Bucks County Local Rule 208.3. Although it
appears the Motion was properly filed, it was never sent to a judge for determination.
Because no docket activity had occurred for two (2) years, on July 7, 2015, a Preliminary
Case Termination Order was entered pursuant to Bucks County Administrative Rule No. 29 by the
Honorable Robert 0. Baldi of the Bucks County Court of Common Pleas
On August 18, 2015, Deutsche Bank filed a "Statement of Intention to Proceed" pursuant
to the Pennsylvania Rules of Civil Procedure.
On September 10, 2015, the case was terminated by this Court.
On December 21, 2015, Deutsche Bank filed a Motion to Reinstate their Complaint. In
their Motion, Deutsche Bank alleged that they never received notice of the September 10, 2015
Termination Order. Deutsche Bank further asserts that the delay in the underlying case was caused
by Taggart's attempts to reach an agreement to cure the default upon the mortgage with Deutsche
Bank. See Plaintiff's Motion to Reinstate, December 21, 2015.
The following day, On December 22, 2015, Taggart filed a "Motion for Enlargement of
Time to Respond to Motion to Reinstate & Rule to Show Cause," pro se.
On January 12, 2016, this Court issued a Rule to Show Cause, ordering Taggart to respond
to Deutsche Bank's Motion to Reinstate the Complaint on or before February 8, 2016.
On January 19, 2016, Taggart, again pro se, filed a "Response/Opposition to Motion to
Reinstate filed by Plaintiff, Rule to Show Cause & Motion to Strike 'Motion to Reinstate' [sic].
In his response, Taggart argues that Deutsche Bank has not timely filed its Motion to Reinstate the
Complaint in Mortgage Foreclosure. See Response/Opposition to Motion January 19, 2016.
2
On February 26, 2016, Defendant, pro se, inexplicably filed a "Supplemental Answer -
Response (by Defendant) to: Motion to Re -Instate," reiterating his same arguments from his prior
Answer.
On October 6, 2016, this Court entered an Order reinstating Deutsche Bank's Complaint
in Mortgage Foreclosure.
On October 17, 2016, Defendant, now represented by counsel, filed both a Motion to
Reconsider our October 6, 2016 Order and his Notice of Appeal. We note that, despite assertions
to the contrary, the Notice of Appeal was never served upon this Court by Taggart's counsel. It
was not until notice from the Superior Court that we learned of Taggart's appeal. We then
promptly ordered a Concise Statement of Matters on November 10, 2016, to which Taggart
responded on December 1, 2016.
Defendant raises the following twenty (20) repetitive issues on appeal, verbatim:
1. Whether the trial court erred in finding that it had subject matter jurisdiction
to re-open the case.
2. Whether the trial court erred in fmding that the Motion or Petition to
Reinstate was properly filed pursuant to Pa Rules of Civil Procedure.
3. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was properly filed pursuant to Bucks County Rules of Civil
Procedure.
4. Whether the trial court erred in finding that the Motion or Petition to
Reinstate provided a proper verification with its motion.
5. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was defective.
6. Whether the trial court erred in finding that the Motion or Petition to
Reinstate provided a proper affidavit.
7. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was properly filed and granted when it failed to cite Pa. R.C.P.
3051, or comply with Pa. R.C.P. 3051.
8. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was properly and timely filed pursuant to: Pa.R.C.P. 227.1. [sic].
9. Whether the trial court erred in fmding that, the Motion or Petition to
Reinstate was granted providing no opinion, or legal theory to grant a the
foregoing motion [sic].
10. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was granted when its petition improperly cited Pa. R.C.P. 230.2,
which was suspended at the time it filed the Motion to Reinstate and relied
on the rule as its legal authority to do so.
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11. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was granted when its petition improperly failed to plead, or meet
all the requirements inPa. R.C.P 3051 [sic].
12. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was granted when its petition improperly failed to plead specific
reasons for delay.
13. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was granted when its petition improperly failed to comply with
Rule 237.3 Relieffrom Judgment of Non Pros or by Default
14. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was granted when its petition improperly failed to provide oral
argument prior to opening the judgment.
15. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was granted when the court failed to provide for discovery after
petition was filed and prior to order granting said petition.
16. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was granted when the petitioner failed to comply with the
termination order.
17. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was granted when the petitioner failed to correct any defects to
comply with the Preliminary Termination Order when it filed a Motion to
Reinstate.
18. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was granted when the petitioner failed to provide specific reasons
for failure to prosecutethe case for over 2 years [sic].
19. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was granted when the petitioner failed to provide specific reasons
for failure to file a timely petition.
20. Whether the trial court erred in finding that the Motion or Petition to
Reinstate was granted when the petitioner failed to cite waiver of issues for
failure to cite Pa. R.C.P. 3051
Concise Statement of Matters Complained of on Appeal, November 28,
2016.
We first note that Taggart asserts that Pa. R.C.P 230.2 was suspended at the time of
Plaintiff's Motion to Reinstate the Complaint, and therefore, this matter is one which constitutes a
Petition to Open a Judgment. We will therefore analyze the merits of Deutsche Bank's Motion
under Pa. R.C.P. 3051(c), which governs the opening of a judgment of non pros because of docket
inactivity.
We also note that relief from a judgment of non pros is discretionary. A ruling will only
be overturned if it illustrates "Manifest unreasonableness, or partiality, prejudice, bias, or
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or such lack of support as to be clearly erroneous." Womer v. Hilliker, 589 Pa. 256, 273 (Pa. Super.
2006).
In order to open a judgment of non pros for inactivity, the Petition must allege that it was
promptly filed and that there is a meritorious cause of action. Additionally, the record must show
that the following did not occur: 1) there was a lack of due diligence on the part of the Plaintiff for
failure to proceed with reasonable promptitude; 2) the plaintiff failed to show a compelling reason
for the delay; and 3) the delay caused actual prejudice to the Defendant. Pa. R,C.P. 3051(c).
Here, Deutsche Bank alleges that they were never served with a copy of the September 10,
2015 Termination Order. It is unclear from the docket whether Deutsche Bank was actually
served, as a Certificate of Service was not attached to the Termination Order.
Additionally, it is clear that the pleadings assert a meritorious claim. Deutsche Bank has
set forth the necessary elements of a mortgage foreclosure action. Deutsche Bank's Complaint
alleges that Taggart executed a mortgage and note, that the mortgage applies to Taggart's real
property, and that the mortgage was in default.
According to the docket, the delay in docket activity was the result of pending motions
filed by both parties. Additionally, Taggart is benefitting, rather than being prejudiced, by the
delay, as it allows his continued occupancy of the property despite his alleged default in payment
of the mortgage.
Although Rule 230.2 was suspended at the time of the Motion, it was reinstated and
amended on December 9, 2015, with the text being effective December 31, 2016. Assuming this
section applies, Deutsche Bank's Motion was still proper.
Rule 230.2 has similar requirements as Rule 305I(c). A Petition to Reinstate a Complaint
will be granted if filed more than thirty (30) days after termination, as long as: 1) the Petition is
timely filed following the entry of termination and 2) there is a reasonable explanation or legitimate
excuse for the failure to file both the Statement of Intention to Proceed and the Petition to Reinstate
within thirty (30) days.
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Here, Deutsche Bank did indeed file a Statement of Intention to Proceed pursuant to the
Pennsylvania Rules of Civil Procedure. Also, we found Deutsche Bank's claim that the
Termination Order was never served, combined with the absence of a Certificate of Service upon
Deutsche Bank, to reasonably explain why the Petition to Reinstate the Complaint was filed more
than thirty (30) days after the case was terminated.
We also emphasize the equitable considerations unique to this case. Kenneth Taggart has
allegedly been in default in mortgage payments for almost eight (8) years. The delay in
prosecuting the case only served to benefit the Defendant, as he continues to occupy his residence
despite the fact that no payments have allegedly been made since March 2009.
Any prejudice caused by the failure to file a Motion to Reinsate within thirty (30) days is
clearly outweighed by the prejudice caused by Taggart's alleged default.
We therefore respectfully urge that our Order reinstating Plaintiff's Complaint in Mortgage
Foreclosure be affirmed.
BY THE COURT:
Iai
DATE 1/21f" ALAN M. RUBENSTEIN, J.
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COPIES SENT TO:
Andrew C. Bramblett, Esq.
Phelan, Hallinan, Diamond & Jones, LLP
One Penn Center at Suburban Station
1617 JFK Boulevard, Suite 1400
Philadelphia, PA 19103
Attorney for Plaintiff' Deutsche Bank National Trust Company
Joshua L. Thomas, Esq.
Joshua L. Thomas & Associates
1110'Pocopson Road
PO Box 415
Pocopson, PA 19366
Attorney for Defendant Kenneth J. Taggart
Joseph D. Seletyn, Esq.
Prothonotary
Superior Court of Pennsylvania
530 Walnut Street, Suite 315
Philadelphia, PA 19106