Diamond Credit Union v. Savory, R. ( 2017 )

J-S30043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DIAMOND CREDIT UNION : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT D. SAVORY AND JILL A. :
SAVORY, :
:
APPEAL OF: ROBERT D. SAVORY : No. 1647 MDA 2016
Appeal from the Order entered September 13, 2016
in the Court of Common Pleas of Berks County,
Civil Division, No(s): 11-06850
BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 10, 2017
Robert D. Savory (“Savory”) appeals from the Order granting
summary judgment in favor of Diamond Credit Union (“Diamond”), in a
mortgage foreclosure action with respect to real property located at 109
Martin Lane, Douglassville, Berks County, Pennsylvania (“the Property”). We
affirm.
On October 20, 2003, Savory and Jill A. Savory (“Jill”)1 obtained a
home equity loan from Diamond in the amount of $100,000. As security for
the loan, Savory and Jill executed an Open-End Mortgage (“the first
Mortgage”) on the Property.
On April 13, 2004, Savory and Jill obtained a second home equity loan
from Diamond in the amount of $100,000. As security for the second loan,
Savory and Jill executed a second Open-End Mortgage (“the second
1
Jill is not a party to the instant appeal.
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Mortgage”) (the first and second Mortgages will collectively be referred to as
“the Mortgages”) on the Property.
On March 25, 2010, Savory and Jill defaulted on the Mortgages by
failing to make their monthly payments due on that date, and each month
thereafter. On January 21, 2011, Savory and Jill were provided Act 91
Notices2 of Diamond’s intention to foreclose on the Mortgages. Savory and
Jill failed to cure the default.
Diamond filed a Complaint in mortgage foreclosure on May 9, 2011,
appending thereto the Mortgages and the Act 91 Notices. Savory filed an
Answer and New Matter on August 10, 2011.
On August 24, 2011, Diamond filed an Amended Complaint. Savory
filed an Amended Answer and New Matter on November 10, 2011. Diamond
filed a Reply on November 21, 2011.
On May 24, 2016, Diamond filed a Motion for Summary Judgment, and
a brief in support thereof, alleging that there were no genuine issues of
material fact in dispute. Savory filed a Response on June 30, 2016. On
September 13, 2016, the trial court granted summary judgment in favor of
Diamond, and awarded Diamond an in rem judgment against Savory in the
amount of $215,536.35, plus $5,000 for attorney’s fees and reimbursement
of costs of suit.
2
See 35 P.S. § 1680.401(c) et seq.
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Savory filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.
On appeal, Savory raises the following issues for our review:
1. Whether the trial court erred as a matter of law by granting
summary judgment because [Diamond] failed to offer the
original and/or a copy of the promissory note demonstrating an
obligation to pay?
2. Whether the trial court erred as a matter of law by granting
summary judgment[,] where [Diamond’s] testimonial affidavit
did not set forth the current delinquent balance[,] and the most
recent payment history record supplied[,] dated January 1,
2011, only demonstrates a delinquent balance owed in the
amount of $3[,]286.20, presenting a discrepancy in a material
fact?
3. Whether the trial court erred by [admitting] the payment
history records attached to [Diamond’s] [M]otion for [S]ummary
[J]udgment[,] in violation of the rule against hearsay?
4. Whether the trial court erred as a matter of law because
[Diamond’s] testimonial affidavit attached to the [M]otion for
[S]ummary [J]udgment failed to establish that the payment
history records qualified as “records of a regularly conducted
activity[,]” pursuant to Pa.R.E. 803(6)?
5. Whether the trial court erred as a matter of law by granting
summary judgment based upon the affidavit of testimony of
[Diamond’s] “Debt Counseling Manager[,]” where it was not
readily apparent that the witness was competent to testify on
the matters set forth in [Diamond’s] testimonial affidavit?
6. Whether the trial court erred as a matter of law by awarding
[Diamond] counsel fees without any evidentiary record of the
time, rate and actual services rendered by [Diamond’s]
attorneys in the foreclosure action?
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Brief for Appellant at 4-5 (issues renumbered).3
Our standard of review of an order granting a motion for summary
judgment is well-settled:
We view the record in the light most favorable to the non-
moving party, and all doubts as to the existence of a genuine
issue of material fact must be resolved against the moving party.
Only where there is no genuine issue as to any material fact and
it is clear that the moving party is entitled to a judgment as a
matter of law will summary judgment be entered. Our scope of
review of a trial court’s order granting or denying summary
judgment is plenary, and our standard of review is clear: the
trial court’s order will be reversed only where it is established
that the court committed an error of law or abused its discretion.
Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012) (citation
omitted).
“The holder of a mortgage has the right, upon default, to bring a
foreclosure action.” Bank of America, N.A. v. Gibson, 102 A.3d 462, 464
(Pa. Super. 2014). Further, in mortgage foreclosure proceedings, “[t]he
holder of a mortgage is entitled to summary judgment if the mortgagor
admits that the mortgage is in default, the mortgagor has failed to pay on
the obligation, and the recorded mortgage is in the specified amount.” Id.
at 465.
In his first claim, Savory argues that a genuine issue of material fact
exists regarding whether Diamond holds the promissory notes for the home
3
We observe that Savory failed to structure his appellate brief such that the
argument section is “divided into as many parts as there are questions to be
argued[.]” Pa.R.A.P. 2119(a).
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equity loans because Diamond failed to produce them. Brief for Appellant at
9-10.
Savory’s first claim challenges Diamond’s standing to bring the
foreclosure action. In a foreclosure action, the plaintiff can prove standing
either by showing that it (1) originated or was assigned the mortgage, or (2)
is the holder of the note specially indorsed to it or indorsed in blank. J.P.
Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258, 1267-68, n.6 (Pa.
Super. 2013).
Initially, we observe, and Savory concedes, that a complaint in
mortgage foreclosure does not need to include the original promissory note.
See Bank of N.Y. Mellon v. Johnson, 121 A.3d 1056, 1063 (Pa. Super.
2015); see also Pa.R.C.P. 1147.
Additionally, regarding the first Mortgage, Paragraph 4 of the Amended
Complaint alleges that “[o]n October 20, 2003, [] Savory and Jill [] executed
a [M]ortgage … given by [Diamond], granting Diamond a security interest in
[the Property.]” Amended Complaint, 8/24/11, ¶ 4. Regarding the second
Mortgage, Paragraph 11 of the Amended Complaint alleges that “[o]n April
13, 2004, [] Savory and Jill [] executed a [M]ortgage … given by [Diamond],
granting Diamond a security interest in [the Property.]” Id. ¶ 11. Diamond
attached to its Amended Complaint a copy of both Mortgages. Id.,
“Mortgage #1,” “Mortgage #2.” Both of the Mortgages identify Diamond as
the mortgagee, and reference the accompanying “Account Agreement.” Id.
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In his Amended Answer and New Matter, Savory admitted his identity as one
of the mortgagors and owners of the Property. See Amended Answer and
New Matter, 11/10/11, ¶ 2. As to Paragraphs 4 and 11, Savory admitted
that “a [M]ortgage is attached…, that [M]ortgage is a writing that speaks for
itself.” Id. ¶¶ 4, 11. Thus, Diamond established standing as the holder of
the Mortgages, and Savory offered no evidence to establish a genuine issue
of material fact. See Murray, supra; see also Pa.R.C.P. 1029(b)
(providing that “[a]verments in a pleading to which a responsive pleading is
required are admitted when not denied specifically…. A general denial …
shall have the effect of an admission.”). Accordingly, Savory is not entitled
to relief on his first claim.
In his second claim, Savory asserts that the most recent account
statement provided by Diamond “demonstrate[s] a delinquent amount of
only $3,627.93, much less than the amount set forth in the Amended
Complaint.” Brief for Appellant at 13-14. Savory additionally claims that
the Mortgages do not provide for acceleration in the event of default. Id. at
14.
Here, Paragraph 6 of the Amended Complaint alleges that the first
Mortgage is in default as a result of the failure to pay the monthly
installments of principal and interest due on March 25, 2010, and each
month thereafter. Amended Complaint, 8/24/11, ¶ 6. Additionally,
Paragraph 7 details, by line item, the total amount due on the first
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Mortgage. Id. ¶ 7. Paragraph 13 alleges that the second Mortgage is in
default due to the failure to pay the monthly installments of principal and
interest due on March 25, 2010, and each month thereafter. Id. ¶ 13.
Additionally, Paragraph 14 details, by line item, the total amount due on the
second Mortgage. Id. ¶ 14. In his Amended Answer and New Matter,
Savory denied the allegations contained in Paragraphs 6 and 13 as
conclusions of law. Amended Answer and New Matter, 11/10/11, ¶¶ 6, 13.
As to Paragraphs 7 and 14, Savory also indicated that he “is without
information sufficient to admit or deny” the allegations because Diamond
failed to attach to its Amended Complaint the promissory notes detailing the
payment terms. Id. ¶¶ 7, 14.
Savory’s general denials regarding his default under the Mortgages
and the specific amount of his default are deemed to be admissions. See
Pa.R.C.P. 1029(b); id. 1029(c), Note (providing that a party is not excused
from “a failure to admit or deny a factual allegation when it is clear that the
pleader must know whether a particular allegation is true or false.”); see
also U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 396 (Pa. Super. 2015)
(stating that “[u]nquestionably, apart from the mortgagee, the mortgagors
are the only parties who would have sufficient knowledge on which to base a
specific denial[.]” (brackets omitted) (citing New York Guardian Mort.
Corp. v. Dietzel, 524 A.2d 951, 952 (Pa. Super. 1987)); Gibson, 102 A.3d
at 467 (stating that “general denials by mortgagors that they are without
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information sufficient to form a belief as to the truth of averments as to the
principal and interest owing on the mortgage must be considered an
admission of those facts.” (citation, quotation marks, and brackets
omitted)). Savory offered nothing to contradict Diamond’s claim except the
general denials in his Amended Answer and New Matter. Therefore, we
conclude that there were no genuine issues of fact regarding Savory’s
default or the amount owed under the Mortgages, and summary judgment
was proper. See Gibson, 102 A.3d at 465.
Savory’s third claim, as set forth in his Statement of Questions
Involved, includes only the bare assertion that the payment history records
attached to Diamond’s Motion for Summary Judgment constitute
inadmissible hearsay. Brief for Appellant at 4. However, in the relevant
section of his Argument, Savory cites only to Pa.R.E. 802 (the rule against
hearsay), and Pa.R.E. 803(6) (exception to the rule against hearsay
concerning records of a regularly conducted activity), and fails to include any
pertinent discussion regarding his claim. Savory’s failure to develop his
argument deprives this Court of a basis upon which to review his claim.
Accordingly, Savory’s third claim is waived. See Pa.R.A.P. 2119(a)
(providing that the argument shall include “such discussion and citation of
authorities as are deemed pertinent.”); Lackner v. Glosser, 892 A.2d 21,
29 (Pa. Super. 2006) (stating that “arguments which are not appropriately
developed are waived.”); see also Bombar v. West American Ins. Co.,
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932 A.2d 78, 93 (Pa. Super. 2007) (stating that “[t]his Court will not act as
counsel and will not develop arguments on behalf of an appellant.”).
We will address Savory’s fourth and fifth claims together, as he
combines the discussion of these issues in his brief. In his fourth claim,
Savory asserts that the testimonial affidavit of Paul M. Schwab (“Schwab”),
the Debt Counseling Manager for Diamond, failed to establish that the
payment history records provided by Diamond constitute records of regularly
conducted activity. Brief for Appellant at 13. In his fifth claim, Savory avers
that Schwab is not competent to testify to the matters contained in the
testimonial affidavit. Id. at 12. Savory cites to Pa.R.C.P. 1035.4,4 and
claims that Schwab’s affidavit “does not state any foundation demonstrating
the circumstances under which the hearsay documents were prepared, kept,
made or that it was a regular activity of [Diamond] to do so.” Brief for
Appellant at 12-13.
Savory’s one-page discussion of these combined issues does not
include any additional analysis or citations to relevant authority.
Accordingly, Savory’s fourth and fifth claims are waived. See Pa.R.A.P.
2119(a); see also Lackner, 892 A.2d at 29-30 (stating that “[a]rguments
4
Rule 1035.4 provides, in relevant part, as follows:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be inadmissible in
evidence, and shall show affirmatively that the signer is
competent to testify to the matters stated therein.
Pa.R.C.P. 1035.4.
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not appropriately developed include those where the party has failed to cite
any authority in support of a contention.”); Bombar, supra.5
In his sixth claim, Savory contends that the Mortgages do not provide
for attorney’s fees. Brief for Appellant at 14. Savory argues that the award
of attorney’s fees is not supported by the terms of the Mortgages or
authorized by any statute. Id. at 15.
Here, in the brief discussion of his final claim, Savory cites to only two
statutory provisions, which he acknowledges are not at issue in the instant
case. Because Savory failed to properly develop his argument, his sixth
claim is waived. See Pa.R.A.P. 2119(a); see also Lackner, 892 A.2d at
29.6
5
Even if Savory’s fourth and fifth claims were fully developed, we would
conclude that they lack merit. See Gibson, 102 A.3d at 467 (concluding
that loan history documents attached to an affidavit submitted in support of
mortgage holder’s motion for summary judgment were “records of regularly
conducted activity, or business records, and would be admissible at trial with
proper foundation.”); see also Pa.R.E. 803(6); 42 Pa.C.S.A. § 6108.
6
We additionally observe that “[i]n Pennsylvania, a mortgagee is entitled on
foreclosure to recover reasonable expenses, including attorney’s fees. The
test of a legal fee must be its reasonableness, determined by the
circumstances of the particular case.” Citicorp Mortg., Inc. v. Morrisville
Hampton Vill. Realty Ltd. P’ship, 662 A.2d 1120, 1123 (Pa. Super. 1995)
(citations omitted). Additionally, “relevant Pennsylvania law finds attorney’s
fees of 10% to be reasonable.” Id. Savory also failed to provide any
argument regarding the reasonableness of the attorney’s fees. See id.
(stating that an “appellant must set forth some facts, beyond bald
assertions, to support its argument that attorney’s fees were
unreasonable.”).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/2017
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