46 Pa. D. & C.5th 204
Pennsylvania Court of Common P...2014Background
- Defendant Jacqueline Miceli borrowed $232,000 from Wachovia Mortgage in 2008 and mortgaged her home at 255 Brittany Drive as security; Wells Fargo later became the lender by merger.
- Plaintiff Wells Fargo filed a mortgage foreclosure complaint on October 8, 2013, alleging default beginning January 1, 2013 and seeking an in rem judgment.
- Plaintiff moved for summary judgment on March 14, 2014, supported by an affidavit stating due payments and total amount owed; defendant answered with general denials and assertions of modification discussions.
- Defendant contends the mortgage was modified (novated) or cured, and disputes the amounts due and the adequacy of notice under Act 6 and Act 91, as well as HAMP compliance.
- Court held that defendant’s paragraph 7 admission is a default on January 1, 2013; defendant failed to raise genuine issues about default, amount due, or notice when record is viewed in plaintiff’s favor.
- Court concluded that HAMP non-compliance cannot serve as a defense to foreclosure; plaintiff complied with Act 6/91 notice requirements and remains holder in interest with standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the mortgage was in default starting January 1, 2013 | Defendant failed to pay due installments; affidavit shows default since Jan 1, 2013. | Denies default and claims possible modification/cure. | Yes, default established; defendant's general denial treated as admission. |
| Whether the amount due is correctly stated | Affidavit shows total due as of Feb 13, 2014 and corroborating payment history. | Denies amount due due to lack of proof of expenditures; requests strict proof. | Amount admitted and supported by record; defendant's denial deemed insufficient. |
| Whether notice of intent to foreclose complied with Act 6 and Act 91 | Combined Act 6/91 notice mailed to correct address; certificate of mailing supports receipt; complaint filed after notice period. | Claims lack of recall of notice and potential defects in mailing. | Complied with statutory notice requirements; defendant's unverified denial insufficient. |
| Whether HAMP non-compliance can defeat foreclosure | Non-enforcement of HAMP guidelines does not bar foreclosure; compliance not a private action defense. | Argues lender must evaluate for modification before foreclose and issue denial if ineligible. | Donaghy and related authority hold HAMP non-compliance cannot be used as a defense to foreclose. |
Key Cases Cited
- LJL Transp., Inc. v. Pilot Air Freight Corp., 962 A.2d 639 (Pa. 2009) (standard for summary judgment review)
- Petrina v. Allied Glove Corp., 46 A.3d 795 (Pa. Super. 2012) (two-part summary judgment test; burden on mover)
- Chenot v. A.P. Green Servs., 895 A.2d 55 (Pa. Super. 2006) (standard for evidence sufficiency in summary judgment)
- Banks v. Trustees of Univ. of Pennsylvania, 666 A.2d 329 (Pa. Super. 1995) (admission of unverified denials in pleadings)
- First Wisconsin Trust Co. v. Strausser, 653 A.2d 688 (Pa. Super. 1995) (mortgage foreclosure notice and proof standards)
- Donaghy v. HSBC Bank, N.A., 101 A.3d 129 (Pa. Super. 2014) (HAMP does not create private right to enforce guidelines against lender)
- Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769 (4th Cir. 2013) (HAMP private action defenses generally unavailable)
- Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547 (7th Cir. 2012) (discusses HAMP frameworks and defenses)