Deutsche Bank v. Broitman, E.
Deutsche Bank v. Broitman, E. No. 1667 EDA 2016
| Pa. Super. Ct. | Apr 28, 2017Background
- Deutsche Bank filed a mortgage foreclosure complaint on May 16, 2014, alleging Eric and Debra Broitman defaulted (no payment since March 2011) and seeking roughly $412,000 (later updated).
- Appellants filed a pro se answer admitting default and the note/mortgage but asserting inability to find a loan modification; they did not contest the debt amount initially.
- Deutsche Bank moved for summary judgment on December 15, 2015, updating the claimed indebtedness to $463,424.38 and submitting a notarized affidavit from an Ocwen loan servicer employee supporting the calculations.
- The Broitmans did not file any response to the summary judgment motion; the trial court granted summary judgment on March 23, 2016, for $463,424.38.
- After judgment, the Broitmans retained counsel, obtained leave to file an appeal nunc pro tunc asserting they did not receive the summary judgment order due to an address entry error, and then timely appealed.
- The Superior Court affirmed, finding the Broitmans failed to respond as required by Pa.R.C.P. 1035.3 and that appellate issues raised were waived for failure to preserve them below.
Issues
| Issue | Plaintiff's Argument (Deutsche Bank) | Defendant's Argument (Broitman) | Held |
|---|---|---|---|
| 1. Whether the servicer affidavit met the definition of an affidavit under Pa.R.C.P. No. 76 | Affidavit was notarized and verified the indebtedness calculations | Affidavit was not properly verified per Rule 76 and lacked required notarial proof of oath | Court held affidavit sufficed; appeal waived and failure to respond justified summary judgment |
| 2. Whether an affidavit summarizing unidentified business records can support summary judgment | Affidavit properly summarized business records and supported the motion | Affidavit relied on unidentified, unattached records and thus was insufficient | Court did not reach merits; failure to respond and preservation rules led to affirmance |
| 3. Whether affiant had personal knowledge to attest to amounts owed | Affiant (Ocwen coordinator) had knowledge from servicer records to calculate amounts | Affiant’s stated knowledge came only from reading unidentified records, lacking personal knowledge | Court affirmed judgment without addressing substantive sufficiency due to waiver/non-response |
| 4. Whether summary judgment was proper where mortgagee relied on affidavit instead of detailed documentation | Mortgagee may rely on servicer affidavit to establish indebtedness at summary judgment | Mortgagee’s testimonial affidavit without attached documentation is insufficient | Court affirmed based on procedural default and waiver; did not decide the evidentiary sufficiency issue |
Key Cases Cited
- Pierce v. Penman, 515 A.2d 948 (Pa. 1986) (trial courts and appellate courts have jurisdiction to decide requests for appeal nunc pro tunc)
- Commonwealth v. Miller, 80 A.3d 806 (Pa. Super. 2013) (preservation of issues is required; issues not raised below are waived)
- In re F.C. III, 2 A.3d 1201 (Pa. 2010) (explaining the importance of issue preservation and allowing trial courts the opportunity to correct errors)