2015 Pa. Commw. Unpub. LEXIS 956
Pennsylvania Court of Common P...2015Background
- Plaintiff (assignee of a mortgage) moved for summary judgment in a foreclosure action alleging defendant mortgagor defaulted by failing to make payments after February 1, 2010; plaintiff attached loan history, affidavit, and recorded assignment(s).
- Defendant filed untimely preliminary objections and a late answer that mainly used general denials and boilerplate (e.g., “without knowledge” and “best evidence” language).
- The trial court granted plaintiff’s unopposed motion for summary judgment; defendant’s counsel withdrew and new counsel appealed after the order; the trial court ordered a Pa.R.A.P. 1925(b) concise statement.
- In his 1925(b) statement defendant raised four issues: (1) whether a genuine issue existed as to default, (2) standing/valid assignment, (3) whether a HEMAP temporary stay applied, and (4) dispute over the amount due.
- The trial court found defendant’s pleadings and opposition insufficient under Pa.R.C.P. 1029 and 1035.3, treated general denials as admissions, held plaintiff proved default, assignment, and amount due, and concluded most appellate arguments were waived for failure to raise them below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of default | Mortgage was in default; affidavit and loan history show no payments after Jan 2010 | Denied default; claimed lack of information about how payments were applied | Denial was a general/boilerplate admission; no controverting evidence; summary judgment proper |
| Standing / valid assignment | Complaint alleged assignment and attached recorded assignment; assignment incorporated by reference | Denied on boilerplate grounds; challenged assignment only on appeal | Plaintiff proved assignment by pleading and exhibit; defendant waived challenge by not raising it below |
| HEMAP temporary stay | Stay terminated because defendant failed to meet with counselor as noticed | Denied; claimed lack of information (asserted in 1925(b) only) | Defendant raised the issue too late and failed to rebut plaintiff’s factual showing; claim waived and meritless |
| Amount of damages | Affidavit and itemized accounting showed sum certain; updated figures attached | General denial of the itemization and amounts | General denials deemed admissions; Landau permits summary judgment for sum certain where default and recorded amount shown |
Key Cases Cited
- Gateway Towers Condo. Ass’n v. Krohn, 845 A.2d 855 (Pa. Super. Ct. 2004) (summary judgment standard in foreclosure)
- First Wis. Trust Co. v. Strausser, 653 A.2d 688 (Pa. Super. Ct. 1995) (general denials in foreclosure treated as admissions)
- N.Y. Guardian Mortg. Corp. v. Dietzel, 524 A.2d 951 (Pa. Super. Ct. 1987) (mortgagor’s general denial deemed admission where only mortgagor could know details)
- Cercone v. Cercone, 386 A.2d 1 (Pa. Super. Ct. 1978) (interpretation of Pa.R.C.P. 1029 regarding “without knowledge” responses)
- Landau v. Western Pennsylvania Nat’l Bank, 282 A.2d 335 (Pa. 1971) (sum-certain judgment proper in foreclosure where default and recorded mortgage amount shown)
- Peters Creek Sanitary Auth. v. Welch, 681 A.2d 167 (Pa. 1996) (timeliness of pleadings and standards for striking late pleadings)