The Bank of New York Mellon v. Goss, J.
731 MDA 2017
| Pa. Super. Ct. | Dec 1, 2017Background
- In Nov. 2015 Bank of New York Mellon (plaintiff) filed a mortgage foreclosure complaint against Jeffrey L. Goss (defendant) on a 2004 note/mortgage after Goss defaulted; plaintiff sought a money judgment and foreclosure.
- Complaint served Dec. 4, 2015; Goss answered with New Matter on Dec. 22, 2015; plaintiff moved for summary judgment Jan. 17, 2017; hearing held Mar. 15, 2017.
- Trial court found Goss’s answer contained admissions and general denials that operated as admissions (including default and amount due) and granted plaintiff summary judgment on Apr. 3, 2017.
- Goss appealed, arguing (1) the Act 91/Act 6 notice was defective and misleading by including a FDCPA-styled notice and (2) there was a triable issue that the parties had reached a novation/settlement agreement.
- The court of appeals reviewed de novo, found no material factual disputes (due to deemed admissions), and concluded Goss failed to show prejudice from any Act 91 defect and produced no evidence of mutual assent for novation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity/effect of Act 91 notice | Notice complied sufficiently; plaintiff notified and explored loss-mitigation options | Notice was defective by including a FDCPA notice, confusing and prejudicial; defective notice should block summary judgment | Court: Any slight defect did not prejudice Goss; he applied for assistance and loss mitigation was discussed; issue fails |
| Existence of novation/settlement agreement | No evidence of mutual assent or writing; movant entitled to judgment | Goss claimed oral settlement/novation with servicer (Lembke) creating triable issue | Court: Goss waived new theory on appeal and produced no admissible evidence of mutual assent; no triable issue; summary judgment proper |
Key Cases Cited
- Bank of America, N.A. v. Gibson, 102 A.3d 462 (Pa. Super. 2014) (general denials in foreclosure answers constitute admissions)
- Wells Fargo Bank, N.A. v. Monroe, 966 A.2d 1140 (Pa. Super. 2009) (purpose and prejudice standard for Act 91 notices)
- Beneficial Consumer Discount Co. v. Vukman, 77 A.3d 547 (Pa. 2013) (a defective Act 91 notice does not deprive the court of subject-matter jurisdiction)
- Buttonwood Farms, Inc. v. Carson, 478 A.2d 484 (Pa. Super. 1984) (elements and proof required to establish novation)
- First Pennsylvania Bank, N.A. v. Triester, 380 A.2d 826 (Pa. Super. 1977) (presumption of validity of original note; need evidence of mutual assent to prove novation)
- DeArmitt v. New York Life Ins. Co., 73 A.3d 578 (Pa. Super. 2013) (credibility is for the factfinder)