Diamond Credit Union v. Savory, R.
Diamond Credit Union v. Savory, R. No. 1647 MDA 2016
| Pa. Super. Ct. | Jul 10, 2017Background
- Robert D. and Jill Savory executed two Diamond Credit Union open-end mortgages (2003 and 2004) securing $100,000 home equity loans each on property in Berks County.
- The Savorys defaulted beginning March 25, 2010; Diamond served Act 91 notices and filed a mortgage foreclosure complaint in May 2011.
- Diamond attached copies of both recorded mortgages to its amended complaint; Robert Savory filed answers and new matter but made mainly general denials.
- Diamond moved for summary judgment in May 2016; the trial court granted summary judgment and entered an in rem judgment for Diamond (including attorney’s fees). Robert Savory appealed.
- On appeal Savory raised six issues: (1) Diamond’s failure to produce the promissory notes/standing; (2) alleged discrepancy in amount owed/payment history; (3) hearsay objection to payment histories; (4) insufficiency of affidavit foundation under business-records exception; (5) affiant’s competency; and (6) award of attorney’s fees.
Issues
| Issue | Plaintiff's Argument (Savory) | Defendant's Argument (Diamond) | Held |
|---|---|---|---|
| 1. Standing / failure to produce original note | Diamond did not produce the promissory notes, so its standing is disputed | Mortgage copies attached to complaint identify Diamond as mortgagee; borrower admissions in answer establish Diamond’s interest | Court: No issue — production of original note not required; Diamond established standing via mortgage records and admissions |
| 2. Amount owed / default | Payment history shows a much smaller delinquency (~$3,600); mortgages do not provide for acceleration | Amended complaint pleaded defaults and itemized amounts; Savory’s denials were general or “without knowledge” and thus deemed admissions | Court: No genuine dispute; Savory’s denials treated as admissions; summary judgment on default/amount proper |
| 3. Hearsay objection to payment histories | Payment histories attached to summary judgment are inadmissible hearsay | Documents qualify as business records; admissible with proper foundation | Court: Argument waived for lack of developed briefing; no relief granted |
| 4. Foundation/business-records exception (Pa.R.E. 803(6)) | Affidavit lacked foundation showing records were regularly kept or prepared | Affidavit and documents suffice; even if argued, prior precedent supports admissibility with foundation | Court: Claim waived for inadequate briefing; court notes even on merits records would qualify as business records |
| 5. Competency of affiant (Schwab) | Affiant (Debt Counseling Manager) not shown competent to testify to records | Affiant’s affidavit asserted competence; role and affidavit generally adequate | Court: Claim waived for inadequate briefing; would lack merit on merits per precedent |
| 6. Attorney’s fees award | Mortgages do not authorize counsel fees and no evidentiary record of fees submitted | Pennsylvania law allows reasonable attorney’s fees in foreclosure; 10% commonly reasonable; applicant offered fee request | Court: Claim waived for inadequate briefing; also noted controlling law permits reasonable fees and appellant failed to challenge reasonableness |
Key Cases Cited
- Daley v. A.W. Chesterton, Inc., 37 A.3d 1175 (Pa. 2012) (summary judgment standard)
- Bank of America, N.A. v. Gibson, 102 A.3d 462 (Pa. Super. 2014) (mortgagee entitled to summary judgment where mortgagor admits default and recorded mortgage shows amount)
- J.P. Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258 (Pa. Super. 2013) (standing can be shown by origination, assignment, or holder status of the note)
- Bank of N.Y. Mellon v. Johnson, 121 A.3d 1056 (Pa. Super. 2015) (complaint need not include original promissory note)
- U.S. Bank, N.A. v. Pautenis, 118 A.3d 386 (Pa. Super. 2015) (mortgagor is in best position to know and deny amounts owed)
- Lackner v. Glosser, 892 A.2d 21 (Pa. Super. 2006) (undeveloped arguments are waived)
- Bombar v. West American Ins. Co., 932 A.2d 78 (Pa. Super. 2007) (appellate court will not develop arguments for appellant)
- New York Guardian Mort. Corp. v. Dietzel, 524 A.2d 951 (Pa. Super. 1987) (mortgagors uniquely positioned to deny indebtedness)
- Citicorp Mortg., Inc. v. Morrisville Hampton Vill. Realty Ltd. P’ship, 662 A.2d 1120 (Pa. Super. 1995) (foreclosure plaintiff may recover reasonable attorney’s fees)