LSF8 Master Participation Trust v. Tanana
37 Pa. D. & C.5th 414
| Pennsylvania Court of Common P... | 2014Background
- Borrowers Brandy and Timothy Tanana executed a mortgage (2006) and allegedly defaulted; foreclosure suit filed by HSBC in 2013, later substituted by purported assignee LSF8.
- Complaint alleged default since March 2010 (but LSF8 later asserted default as of March 1, 2011) and sought in rem judgment for principal, interest, charges, taxes, insurance, and counsel fees.
- Tananas’ answer specifically denied the asserted default and alleged that prior servicer/assignor miscredited or rejected payments and intentionally forced a default.
- LSF8 moved for summary judgment, relying on a servicer officer affidavit stating the amount due ($481,480.49) and arguing the Tananas’ denials were general admissions under Pa.R.C.P. 1029(b).
- Tananas opposed, asserting factual disputes about credits, rejected tenders, attorney fees, and statutory notice compliance (Act 6/Act 91); they renewed the defense that tenders were rejected to force default.
- Court considered Nanty-Glo limitations on reliance on testimonial affidavits and denied summary judgment, finding genuine issues of material fact and that the Tananas’ denials were specific (or by necessary implication) and not admissions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether borrowers’ responsive denials are general admissions under Pa.R.C.P. 1029(b) | Tananas’ short denials amount to admissions of default and amounts due | Denials are specific and allege rejected/miscredited payments and intent to force default, thus deny liability by implication | Denials are specific/by necessary implication; not admissions; SJ denied |
| Whether assignee may obtain summary judgment based on movant’s affidavit (servicer officer) | Affidavit conclusively establishes amounts due and lack of genuine dispute | Affidavit is testimonial; cannot resolve credibility or disputed factual issues like rejected tenders | Affidavit insufficient under Nanty-Glo; testimonial affidavits alone cannot support SJ; genuine issues remain |
| Whether assignee succeeds to rights free of assignor’s defenses | LSF8 argues entitlement to judgment as assignee | Tananas argue assignee takes subject to defenses against assignor (e.g., rejection of payments) | Assignee subject to assignor’s defenses; borrower defenses survive assignment for purposes of SJ |
| Whether statutory notice (Act 6/Act 91) defects or "staleness" defeat summary judgment | LSF8 did not rely primarily on notice timing for SJ | Tananas contend notices were stale/insufficient to permit cure and avoid foreclosure | Court declined to resolve notice issue because other genuine disputes (rejected tenders) precluded SJ; issue not decided on merits |
Key Cases Cited
- Nanty-Glo v. American Surety Co. of New York, 163 A. 523 (Pa. 1932) (limits moving party’s reliance on its own testimonial affidavits at summary judgment)
- Joseph v. Mellon Bank, 406 A.2d 1055 (Pa. Super. 1979) (tender alleged and refused by lender constitutes denial by necessary implication and is a cognizable defense to foreclosure)
- Dietzel v. New York Guardian Mortgage Corp., 524 A.2d 951 (Pa. Super. 1987) (discusses when borrowers’ denials may be treated as admissions under Rule 1029(b))
- Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899 (Pa. 2007) (testimonial affidavits, even if uncontroverted, do not replace a factfinder on credibility in summary judgment context)
- Cunningham v. McWilliams, 714 A.2d 1054 (Pa. Super. 1998) (summary judgment in foreclosure appropriate only where borrower admits default and lacks a cognizable defense)