Green Tree Servicing v. Crawford, S. ( 2020 )

J-S07018-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GREEN TREE SERVICING, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
KARYN KERNS AND STEWART :
CRAWFORD :
:
Appellants : No. 2033 EDA 2018
Appeal from the Order Entered June 5, 2018
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 14-003867
BEFORE: NICHOLS, J., KING, J., and STRASSBURGER, J.*
MEMORANDUM BY KING, J.: Filed: March 23, 2020
Appellants, Karyn Kerns and Stewart Crawford, appeal from the order
entered in the Delaware County Court of Common Pleas, which granted
summary judgment in favor of Appellee, Green Tree Servicing, LLC (“Green
Tree”)1 in this mortgage foreclosure action. We affirm.
The relevant facts and procedural history of this case are as follows:
The initial complaint in this proceeding was filed on April 28,
2014. … [Appellants] executed a mortgage on May 19,
2004, which was properly recorded in the office of the
Recorder of Deeds in Delaware County. The mortgage
identified the lender as America’s Wholesale Lender and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 During the course of this litigation, Green Tree changed its name to Ditech
Financial, LLC. For ease of discussion, however, we will continue to use the
name Green Tree throughout this memorandum.
J-S07018-20
identified “MERS” Mortgage Electronic Registration
Systems, Inc., as acting nominee for lender and its
successors and assigns as the mortgagee under the security
agreement. The borrowers were identified as [Appellants]
and their signatures appear on Page 15 of the mortgage.
The Complaint averred that Green Tree was assigned the
mortgage on June 12, 2013 from Mortgage Electronic
Registration Systems, Inc. as nominee for America’s
Wholesale Lender. That assignment was also properly
recorded in Delaware County Recorder of Deeds office. The
Complaint averred that only [Appellant Crawford] executed
the note on May 19, 2004 in the original [principal] amount
of $180,000.00. The Complaint averred that interest,
accumulated late charges, escrow, costs of suit and
attorney’s fees had been incurred since the default. Finally,
the Complaint averred that proper notice of intention to
foreclosure (“Act 6 Notice”) 41 P.S. § 403 and notice of
homeowner’s emergency mortgage assistance (“Act 91
Notice”) 35 P.S. § 1680.403(c) had been forwarded to
[Appellants].
[Appellants] filed a series of Preliminary Objections in
response to the Complaint. [Appellant Crawford] was
admitted on May 22, 2006 to the Bar of the Commonwealth
of Pennsylvania. On June 16, 2014, he filed, on behalf of
[Appellant Kerns], now known as Karen M. Crawford,
Preliminary Objections. On July 9, 2014, [Appellant
Crawford] filed Preliminary Objections on his own behalf,
and then on July 17, 2014 he filed amended/supplemental
Preliminary Objections on behalf of [Appellant Kerns].
Green Tree answered the Preliminary Objections on July 7,
2014, and answered the amended Preliminary Objections on
September 15, 2014. The Honorable Christine Fizzano
Cannon, former Judge of the Court of Common Pleas of
Delaware County, entered an order overruling the
Preliminary Objections on October 16, 2014. [Appellants]
then filed an Answer to the Complaint with New Matter and
Counterclaim on November 7, 2014. [Appellants] asserted
103 averments in new matter, and pled twelve (12) counts
in [their] counterclaim which included a Dragonetti claim,
breach of contract, breach of good faith and fair dealing,
consumer trade violations, recording law violations, criminal
law violations, collection practice law violations, RESPA
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violations, misrepresentation/fraud, unjust enrichment,
“RICOH,” corruption and negligence.
Green Tree responded through the Preliminary Objections.
On March 11, 2015, Judge Fizzano Cannon sustained the
Preliminary Objections and struck all counterclaims due to
lack of specificity in failing to provide the material facts on
which each of the counterclaims were based. The order was
entered without prejudice to [Appellants] to file amended
counterclaims within twenty (20) days of the Order.
[Appellants] did not file any amended counterclaim. The
case was formally assigned to Judge Fizzano Cannon in May
2015, and the initial scheduling order to the parties placed
the proceeding on her trial term commencing September 8,
2015. Green Tree filed a Motion for Summary Judgment on
July 17, 2015 which was answered on August 27 th by
[Appellants]. By order dated September 14, 2015, the
Summary Judgment Motion was denied and trial was
scheduled for September 29, 2015. The September 14th
Order further provided that [Appellants] had raised before
the [c]ourt the issue that Green Tree had failed to respond
to their new matter. The [c]ourt noted that new matter was
not stricken in the March 11, 2015 Order and that
[Appellants were] granted leave to raise at trial objection to
evidence offered by Green Tree in defense to a pleading that
remained unanswered.
The dockets next reflect that four Motions in Limine were
filed by [Appellants] and Green Tree responded with
Objections based on untimeliness and in violation of the
[c]ourt’s scheduling Order. On October 7, 2015, Judge
Fizzano Cannon entered an Order which granted Green
Tree’s Oral Motion for Leave of Court to Answer [Appellants’]
New Matter nunc pro tunc. Both parties were also granted
leave of [c]ourt to conduct discovery and a date certain for
trial was established for February 22, 2016. The [c]ourt
noted in Paragraph Six that the Motions in Limine were
denied without prejudice to raise any evidentiary issues at
trial. On December 30, 2015, [Appellants] filed a Motion to
Deem the Request for Admissions Admitted or Motion to
Compel Sufficient Responses. Green Tree filed a Motion for
Summary Judgment and [Appellants] also filed a Motion for
Partial Summary Judgment on January 5, 2016. After
argument, Judge Fizzano Cannon on April 8, 2016 denied
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each party’s Motion for Summary Judgment. On April 13,
2016, the [c]ourt granted in part and denied in part
[Appellants’] Motion to Compel and instructed Green Tree to
file sufficient answers within twenty (20) days of the Court
Order.
Green Tree, on April 27, 2016, filed a Petition for an Order
of Corrected Foreclosure Notice. [Appellants] had raised a
challenge to the notices attached to the Complaint because,
although the document properly identified the parties and
the default amount, the notice referenced a property at a
different address. On August 23, 2016, Judge Fizzano
Cannon granted Green Tree leave of [c]ourt to serve a
corrected foreclosure notice and instructed Green Tree to
file an amended complaint thereafter. The order also
provided that upon receipt of the amended complaint, the
[c]ourt would issue a revised Scheduling Order.
[Appellants] filed, on September 13, 2006, a Motion for an
Entry of an Order pursuant to Rule 237.1 (i.e. non-
prosecution) which Green Tree timely answered. Judge
Fizzano Cannon conducted argument and on October 24,
2016 denied [Appellants’] Motion. The amended complaint
was filed on March 13, 2017. [Appellants] filed Preliminary
Objections on April 3, 2017. Judge Fizzano Cannon
overruled the Preliminary Objections on April 27, 2017.
[Appellants], on June 26, 2017, filed an Answer with New
Matter and Counterclaim to the Complaint. [Appellants]
pleaded 442 averments in new matter. [Appellants] also
included thirteen (13) counts in the counterclaim, which
mostly mirrored the initial counterclaim but now included a
claim for violation of loan interest and protection law/usury.
[Green Tree] filed Preliminary Objections to the New Matter
and Counterclaim. [Appellants] answered on November 13,
2017. Judge Fizzano Cannon sustained [Green Tree’s]
Preliminary Objections and struck the Counterclaims from
the record. [Green Tree’s] Preliminary Objections to New
Matter were overruled. [Green Tree] was instructed to
answer the New Matter and a non-jury trial was placed on
the [c]ourt’s January 29, 2018 term. Judge Fizzano Cannon
was elected to the Commonwealth Court of Pennsylvania
and commenced her position with that [c]ourt on January 1,
2018. [The Honorable Chad F. Kenney] was assigned Judge
Fizzano Cannon’s inventory and on February 13, 2018, an
order was entered that a status hearing would be conducted
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on March 22, 2018 as part of the call of the list. On March
20, 2018, [Green Tree] filed a Motion for Summary
Judgment. On May 7, 2018, [Appellants] answered the
motion. On June 5, 2018,[2] this [c]ourt entered an order
granting [Green Tree’s] Motion for Summary Judgment and
entered an in rem judgment against [Appellants] in the
amount of $229,610.38.
(Trial Court Opinion, filed August 24, 2018, at 1-5) (internal citations
omitted). Appellants timely filed a notice of appeal on July 6, 2018. The court
ordered Appellants on July 10, 2018, to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellants filed their
Rule 1925(b) statement on July 30, 2018.
On March 27, 2019, Green Tree filed a notice of bankruptcy, and on April
4, 2019, this Court stayed the appeal. Green Tree filed an application to lift
the stay on November 22, 2019. The application also noted that Appellant
Crawford, who was representing himself and Appellant Kerns, is now
deceased. On January 7, 2020, this Court entered an order indicating the
appeal could be listed on the next available panel and requesting Appellant
Kerns to file a response indicating whether she had retained new counsel.
New counsel entered his appearance on behalf of Appellant Kerns on January
17, 2020, and this Court entered an order lifting the stay on the same day.3
____________________________________________
2 The certified docket entries confirm that Pa.R.C.P. 236 notice was not sent
to the parties until June 6, 2018.
3Appellant Kerns did not respond to this Court’s inquiry regarding whether a
personal representative of Appellant Crawford would be substituted as a party.
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Appellants raise the following issues for our review:
WHETHER THE COURT COMMITTED REVERSIBLE ERROR
AND/OR ABUSED ITS DISCRETION GIVEN THAT THE
COURT: (1) APPEARS TO HAVE NOT READ [APPELLANTS’]
FIFTY PAGE RESPONSE IN OPPOSITION TO [GREEN TREE’S]
THIRD MOTION FOR SUMMARY JUDGMENT; (2) FAILED TO
ADDRESS ANY OF THE MULTIPLICITY OF VALID DEFENSES
RAISED BY [APPELLANTS] ON SUMMARY JUDGMENT; (3)
DELVED INTO THE REALM OF THE TRIER OF FACT BY
(LITERALLY) WEIGHING EVIDENCE AND ERRONEOUSLY
OVERLOOKING EXHIBITS PLACED ON THE RECORD; (4)
VIOLATED THE COORDINATE JURISDICTION RULE; (5)
LACKED JURISDICTION DUE TO THE FAILURE OF [GREEN
TREE] TO JOIN INDISPENSABLE PARTIES; (6) DID NOT
HOLD ANY FORM OF HEARING WITH RESPECT TO THE
SUMMARY JUDGMENT; [AND] (7) DEPRIVED [APPELLANTS]
OF A RIGHT TO TRIAL[.]
WHETHER EARLIER DECISIONS OF THE COURT WERE
LIKEWISE REVERSIBLE ERROR AND/OR ABUSE OF
DISCRETION INCLUDING THE: [(1)] DISMISSAL OF
[APPELLANTS’] COUNTERCLAIMS FILED PURSUANT TO
PA.R.C.P. 1148; [(2)] FAILURE TO RULE UPON THE PRIOR
FILED MOTIONS IN LIMINE; [(3)] DENIAL OF
[APPELLANTS’] SEPTEMBER 13, 2016 MOTION FOR NON-
PROSECUTION; [(4)] GRANTING OF [GREEN TREE’S] ORAL
MOTION TO REOPEN THE PLEADINGS AND FILE A REPLY TO
NEW MATTER (ON THE DAY OF THE FIRST SCHEDULED
TRIAL IN 2015); [(5)] FAILURE TO CONDUCT AN INQUIRY
INTO THE CHAIN OF TITLE ONCE THE PRESUMPTION OF
OWNERSHIP HAD BEEN REBUTTED; [(6)] ALLOWING
[GREEN TREE] TO EXPAND UPON THE AMENDED
COMPLAINT, BEYOND WHAT WAS EXPRESSLY AUTHORIZED
BY ORDER; [(7)] FAILURE TO DISMISS THE ACTION BASED
ON THE ACT 91 DEFECTS; [AND (8)] ALLOWANCE OF
[GREEN TREE] TO SPLIT THE NOTE FROM THE SECURITY
INSTRUMENTS[.]
(Appellants’ Brief at 4-5).
Our standard of review of an order granting summary judgment requires
us to determine whether the trial court abused its discretion or committed an
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error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 347 (Pa.Super.
2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it misapplies
the law or exercises its discretion in a manner lacking
reason. Similarly, the trial court abuses its discretion if it
does not follow legal procedure.
Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal
citations omitted). Our scope of review is plenary. Pappas v. Asbel, 564 Pa.
407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct.
2618, 153 L.Ed.2d 802 (2002). In reviewing a trial court’s grant of summary
judgment:
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there exists
a genuine issue of material fact. 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. All doubts as to the
existence of a genuine issue of a material fact must be
resolved against the moving party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause of
action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or defense
which in a jury trial would require the issues to be submitted
to a jury. In other words, whenever there is no genuine
issue of any material fact as to a necessary element of the
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cause of action or defense, which could be established by
additional discovery or expert report and the moving party
is entitled to judgment as a matter of law, summary
judgment is appropriate. Thus, a record that supports
summary judgment either (1) shows the material facts are
undisputed or (2) contains insufficient evidence of facts to
make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
Initially, appellate briefs must conform in all material respects to the
briefing requirements in the Pennsylvania Rules of Appellate Procedure.
Pa.R.A.P. 2101. When an appellant fails to raise or develop her issues on
appeal properly, or where her brief is wholly inadequate to present specific
issues for review, this Court can decline to address the appellant’s claims on
the merits. Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000). See also
Lackner v. Glosser, 892 A.2d 21 (Pa.Super. 2006) (explaining arguments
must adhere to rules of appellate procedure and arguments which are not
appropriately developed are waived; arguments not appropriately developed
include those where party has failed to cite authority to support contention);
Estate of Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating
appellant must support each question raised by discussion and analysis of
pertinent authority; absent reasoned discussion of law in appellate brief,
appellant hampers this Court’s review and risks waiver).
Instantly, Appellants raise two issues on appeal which contain a total of
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fifteen subparts. In their appellate brief, however, Appellants seemingly
address only five of these subparts: subparts four and five of issue one and
subparts one, five, and eight of issue two. Appellants’ failure to develop their
other ten subparts on appeal with cogent argument prevents meaningful
review of their claims and constitutes waiver of those issues. See Butler,
supra.With respect to the five arguments Appellants preserved, after a
thorough review of the record, the briefs of the parties, the applicable law,
and the well-reasoned opinion of the Honorable Chad F. Kenney, we conclude
these issues merit no relief. The trial court opinion comprehensively discusses
and properly disposes of those claims. (See Trial Court Opinion, filed August
24, 2018, at 6-13) (finding: court rejected Green Tree’s first two summary
judgment motions because Appellants raised questions regarding authenticity
or status of pleadings; Green Tree’s amended complaint responded
satisfactorily to all prior court inquiry such that no material factual disputes
remained; prior case law has rejected Appellants’ demands for other parties,
such as Fannie Mae, to be joined in this proceeding; Appellants’ counterclaims
were improper because rules of civil procedure limit counterclaims to those
that are part of or incident to creation of mortgage; Pa.R.C.P. 1148 does not
allow defendants of in rem mortgage foreclosure proceeding to pursue action
in personam for money damages via counterclaim; current trial jurist found
no errors in prior jurist’s orders entered between October 17, 2014 and
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November 14, 2017; court’s review of record established no error in creation,
recording, assigning, and noticing of mortgage and note; Appellants failed to
establish any legitimate defense). The record supports the court’s decision;
therefore, we see no reason to disturb it. See Chenot, supra. Accordingly,
we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/20
- 10 -
Circulated 02/28/2020 10:56 AM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CIVIL DIVISION
DITECH FINANCIAL, LLC No.: 2014-003867
F/KJA GREEN TREE SERVICING, LLC
v.
STEWART C. CRAWFORD, JR.;
KARYN M. KERNS; and UNITED
STATES OF AMERICA
OPINION
On June 5, 2018, this Court entered an Order granting the Motion of Plaintiff,
Ditech Financial, LLC f/k/a Green Tree Servicing, LLC ("Ditech") for Summary Judgment
in favor of Ditech and against Defendants, Stewart C. Crawford, Jr. and Karyn M. Kerns
and entering an in-rem judgment in mortgage foreclosure in the amount of
$229,610.38. Crawford and Kerns have timely appealed.
The initial complaint in this proceeding was filed on April 28, 2014. Plaintiff was
then identified as Green Tree Servicing, LLC ("Green Tree")(Paragraph One of
complaint). Crawford and Kerns executed a mortgage on May 19, 2004, which was
properly recorded in the office of the Recorder of Deeds in Delaware County
(Paragraph Three of complaint). The mortgage identified the lender as America's
Wholesale Lender and identified "MERS" Mortgage Electronic Registration Systems,
Inc., as acting nominee for lender and its successors and assigns and as the mortgagee
under the security agreement (Exhibit A to complaint, Paragraphs C and D). The
borrowers were identified as Stewart C. Crawford, Jr. and Karyn M. Kerns and their
signatures appear on Page 15 of the mortgage (Exhibit A to Complaint). The Complaint
averred that Green Tree was assigned the mortgage on June 12, 2013 from Mortgage
1
Electronic Registration Systems, Inc. as nominee for America's-Wholesale Lender
(Exhibit B to complaint). That assignment was also properly recorded in Delaware
County Recorder of Deeds office (Paragraph Three of Complaint). The Complaint
averred that only Stewart C. Crawford, Jr. executed the note on May 19, 2004 in the
original trioc.\�o.., amount of $180,000.00 (Paragraph Four of Complaint and Exhibit C).
The Complaint averred that interest, accumulated late charges, escrow, costs of suit
and attorney's fees had been incurred since the default (Paragraph Seven of
Complaint). Finally, the Complaint averred that proper notice of intention to foreclose
("Act 6 Notice") 41 P .S. §403 and notice of homeowner's emergency mortgage
assistance ("Act 91 Notice") 35 P.S. §1680.403(c) had been forwarded to Crawford and
Kerns.
Crawford and Kerns filed a series of Preliminary Objections in response to the
Complaint. Defendant, Stewart C. Crawford, Jr. was admitted on May 22, 2006 to the
Bar of the Commonwealth of Pennsylvania. On June 16, 2014, he filed, on behalf of
Karyn M. Kerns, now known as Karen M. Crawford, Preliminary Objections. On July 9,
2014, Crawford filed Preliminary Objections on his own behalf, and then on July 17,
2014 he filed amended/supplemental Preliminary Objections on behalf of Kerns. Green
Tree answered the Preliminary Objections on July 7, 2014, and answered the amended
Preliminary Objections on September 15, 2014. The Honorable Christine Fizzano
Cannon, former Judge of the Court of Common Pleas of Delaware County, entered an
order overruling the Preliminary Objections on October 16, 2014. Crawford then filed an
Answer to the Complaint with New Matter and Counterclaim on November 7, 2014.
Crawford asserted 103 averments in new matter, and pied twelve (12) counts in his
2
counterclaim which included a Dragonetti claim, breach of contract, breach of good faith
and fair dealing, consumer trade violations, recording law violations, criminal law
violations, collection practice law violations, RESPA violations, misrepresentation/fraud,
unjust enrichment, "RICOH", corruption and negligence.
Green Tree responded through the Preliminary Objections. On March 11, 2015,
Judge Fizzano Cannon sustained the Preliminary Objections and struck all counter-
claims due to lack of specificity in failing to provide the material facts on which each of
the counterclaims were based. The order was entered without prejudice to Crawford to
file amended counter-claims within twenty (20) days of the Order. Crawford did not file
any amended counter-claim. The case was formally assigned to Judge Fizzano Cannon
in May, 2015 and the initial scheduling order to the parties placed the proceeding on her
trial term commencing September 8, 2015. Green Tree filed a Motion for Summary
Judgment on July 17, 2015 which was answered on August 271h by Crawford. By order
dated September 14, 2015, the Summary Judgment Motion was denied and trial was
scheduled for September 29, 2015. The September 14th Order further provided that
Crawford had raised before the Court the issue that Green Tree had failed to respond to
their new matter. The Court noted that new matter was not stricken in the March 11,
2015 Order and that Crawford was granted leave to raise at trial objection to evidence
offered by Green Tree in defense to a pleading that remained unanswered.
The dockets next reflect that four Motions in Umine were filed by Crawford and
Green Tree responded with Objections based on untimeliness and in violation of the
Court's scheduling Order. On October 7, 2015, Judge Fizzano Cannon entered an
Order which granted Green Tree's Oral Motion for Leave of Court to Answer Crawford
3
and Kerns' New Matter nunc pro tune. Both parties were also granted leave of Court to
conduct discovery and a date certain for trial was established for February 22, 2016.
The Court noted in Paragraph Six that the Motions in Limine were denied without
prejudice to raise any evidentiary issues at trial. On December 30, 2015, Crawford filed
a Motion to Deem the Request for Admissions Admitted or Motion to Compel Sufficient
Responses. Green Tree filed a Motion for Summary Judgment and Crawford also filed
a Motion for Partial Summary Judgment on January 5, 2016. After argument, Judge
Fizzano Cannon on April 8, 2016 denied each party's Motion for Summary Judgment.
On April 13, 2016, the Court granted in part and denied in part Crawford and Kerns'
Motion to Compel and instructed Green Tree to file sufficient answers within twenty (20)
days of the Court Order.
Green Tree, on April 27, 2016, filed a Petition for an Order of Corrected
Foreclosure Notice. Crawford had raised a challenge to the notices attached to the
Complaint because, although the document properly identified the parties and the
default amount, the notice referenced a property at a different address. On August 23,
2016, Judge Fizzano Cannon granted Green Tree leave of Court to serve a corrected
foreclosure notice and instructed Green Tree to file an amended complaint thereafter.
The order also provided that upon receipt of the amended complaint, the Court would
issue a revised Scheduling Order. Crawford filed, on September 13, 2006, a Motion for
an Entry of an Order pursuant to Rule 237 .1 (i.e. non-prosecution) which Green Tree
timely answered. Judge Fizzano Cannon conducted argument and on October 24, 2016
denied Crawford's Motion. The amended complaint was filed on March 13, 2017.
Crawford and Kerns filed Preliminary Objections on April 3, 2017. Judge Fizzano
4
Cannon overruled the Preliminary Objections on April 27, 2017. Crawford and Kerns, on
June 26, 2017, filed an Answer with New Matter and Counter-Claim to the Complaint.
Crawford pleaded 442 averments in new matter. Crawford also included thirteen (13)
counts in the counter-claim, which mostly mirrored the initial counter-claim but now
included a claim for violation of loan interest and protection law/usury. Ditech filed
Preliminary Objections to the New Matter and Counterclaim. Crawford and Kerns
answered on November 13, 2017. Judge Fizzano Cannon sustained Ditech's
Preliminary Objections and struck the Counterclaims from the record. Ditech's
Preliminary Objections to New Matter were overruled. Ditech was instructed to answer
the New Matter and a non-jury trial was placed on the Court's January 29, 2018 term.
Judge Fizzano Cannon was elected to the Commonwealth Court of Pennsylvania and
commenced her position with that Court on January 1, 2018. The author of this Opinion
was assigned Judge Fizzano Cannon's inventory and on February 13, 2018 an order
was entered that a status hearing would be conducted on March 22, 2018 as part of the
call of the list. On March 20, 2018, Ditech filed a Motion for Summary Judgment. On
May 7, 2018, Crawford and Kerns answered the motion. On June 5, 2018, this Court
entered an order granting Ditech's Motion for Summary Judgment and entered an in-
rem judgment against Crawford and Kerns in the amount of $229,610.38.
Crawford and Kerns have filed a statement of errors complained on appeal
pursuant to Pa. R.A.P. No. 1925(b), which contained eight enumerated paragraphs but
detail thirty-eight errors by the trial court. Crawford and Kerns complained that this
Court failed to read their fifty page response to Ditech's third Motion for Summary
Judgment; that this Court overlooked the multiplicity of exhibits placed into the record in
5
their prior Summary Judgment briefing responses; that the Court failed to hold a hearing
before ruling on the Motion for Summary Judgment; that Crawford and Kerns were
deprived of a right to trial; that the Court violated the coordinate jurisdiction rule by
overturning the prior decisions of Judge Fizzano Cannon, who had twice denied
Summary Judgment and that the Court lacked jurisdiction due to Green Tree's failure to
join indispensable parties. Finally, Crawford and Kerns allege that this Court erred in
failing to address any of the issues raised in their new matter and complain of all orders
entered by Judge Fizzano Cannon.
Initially, this Court notes that it did review the entire voluminous record before
entering its order of June 5, 2018. Ditech, in great detail, averred in 162 paragraphs, the
creation of the mortgage, the location of the premises securitized, the identification of
the mortgagee and note holder, the identification of the mortgagors, their payment
history and the default notices required by statute. Crawford and Kerns' response in
opposition contained general averments which failed to specifically admit or deny the
occurrence of certain transactions and/or notices to Crawford and Kerns. This Court
reviewed the Amended Complaint and the Answer and New Matter to the Amended
Complaint. This Court also reviewed, in detail, the citations by Crawford and Kerns in
their response referencing exhibits contained in their prior pleadings in this proceeding.
A trial court may grant summary judgment:
[O]nly in those cases where the record clearly demonstrates that there is
no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. When considering a motion for summary
judgment, the trial court must take all facts of record and reasonable
inferences therefrom in a light most favorable to the non-moving party. In
so doing, the trial court must resolve all doubts as to the existence of a
genuine issue of material fact against the moving party, and, thus, may
6
only grant summary judgment where the right to such judgment is clear
and free from all doubt.
Summer v. Certainteed Corp., 997 A.2d 1152, 1159, 606 Pa. 294 (2010) (internal
quotations and citations omitted). "A material fact 'is one that directly affects the
outcome of the case.' Fortney v. Callenberger, 801 A.2d 594, 597 (Pa.Super.2002).
Disputed facts which are not critical to the issue in the petition will not preclude
summary judgment." Bartlett v. Bradford Publishing, Inc., BBS A.2d 562, 568 (Pa.
Super. 2005). For Crawford and Kerns to have successfully defended against this
Motion for Summary Judgment, they would have had to establish "one or more issues of
fact arising from evidence in the record controverting the evidence cited in support of
the motion or from a challenge to the credibility of one or more witnesses testifying in
support of the motion." CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 69-70 (Pa. Super.
2016).
Initially, this Court notes that no material factual dispute exists in this proceeding
that Crawford and Kerns have failed to make any mortgage payments since April 1,
2013. Crawford and Kerns do not protest such factual finding in their statement of
matters complained. Crawford and Kerns missed 45 mortgage payments between April
1, 2013 and December 1, 2016 which totaled $87 ,589.23. Crawford and Kerns did not
elect to pursue any loan modification or any other adjustment offered through the Act 91
notice. Furthermore, Crawford and Kerns failed to offer any evidence that would
controvert the evidence cited in support of this Motion and did not offer any challenges
to the credibility of the affidavits procured by Green Tree in support of this Motion. As
7
detailed hereinafter, Crawford and Kerns' repeated attempts to establish disputed facts
not critical to an in rem proceeding were misfounded.
The record clearly establishes that on March 21, 2013 Green Tree sent a notice
to Crawford and Kerns at their home secured by the mortgage informing them that
servicing of the mortgage was being transferred from Bank of America to Green Tree
effective April 1, 2013. The correspondence further provided that the change in
servicing does not affect any terms of the mortgage and contained an address to mail
the payments (Exhibit 1 (e) to Ditech's Motion for Summary Judgment). Crawford had
prior to that time been making timely payments pursuant to an automatic withdraw from
his bank account by Bank of America. This initial correspondence from Green Tree
notified the Crawford and Kerns that the automatic withdraw payment plan had been
cancelled as part of the transfer of servicing. The depositions of Crawford and Kerns
(Exhibits 4 and 8) establish that Crawford was no longer living together in the property
in March, 2013 and that he rarely picked up his mail. Crawford and Kerns had been
married in 2002 shortly after they purchased 615 Edmonds Avenue, Drexel Hill,
Delaware County, Pennsylvania, which is the property subject to the mortgage. A copy
of the original deed dated September 6, 2002 and the original purchase money
mortgage are attached to the Ditech Motion for Summary Judgment (Exhibits 2 and 3).
The subject loan was sought in April, 2004 in order to obtain a lower monthly payment
and to make repairs to the roof.
In the Preliminary Objections, Answers, New Matter and Counterclaims and in
the responses to the motions for Summary Judgment, Crawford and Kerns have
challenged every aspect of this litigation from the settlement on the re-finance of the
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mortgage in 2004, through the corrected Act 91 notice mailed to their attention on
December 9, 2016.
Crawford and Kerns have challenged the validity of the mortgage and note
executed at their 2004 refinance. Both Crawford and Kerns admit their valid signatures
are on the documents but question the propriety of the notary and the handwritten
insertion of Kerns name as borrower on the mortgage instrument. Crawford and Kerns
question the differences in certain photo copies of the note and mortgage which have
been presented into the record. The note attached as Exhibit C to the original complaint
had several areas marked "redacted" and failed to include the blank endorsement
executed by Countrywide Home Loans, a New York Corporation doing business as
American Wholesale Lender. The note attached as Exhibit A to the Amended Complaint
inserted the redacted information and included the blank endorsement. The mortgage
attached to the original complaint as Exhibit A was also marked redacted in areas which
are removed in Exhibit B to the amended complaint. Karyn M. Kerns admitted her valid
signature exists on the mortgage but Crawford questioned the appearance of her hand
written name in the borrower section on page one of the mortgage. Karyn M. Kerns'
name is also hand written under her signature. Crawford questions the identification of
MERS and America's Wholesale Lender Corporation as the lender and mortgagee in
the original note. Crawford challenges the assignment by MERS to Green Tree
Servicing, LLC. Crawford questions the ability of Ditech to proceed on behalf of Green
Tree in the Amended Complaint. Crawford also challenges the Act 91 notices, the
transfer of the servicing rights on the mortgage, the assignment of the mortgage, and
the absence of Fannie Mae from this litigation.
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Initially, this Court's review of the pleadings, record and Court orders entered by
Judge Christine Fizzano Cannon between October 17, 2014 to November 14, 2017
establish no error in Judge Fizzano Cannon's orders. This Court can discern no
prejudice to Crawford and Kerns in granting Green Tree leave to amend New Matter,
while at the same time, allowing the parties to proceed to Discovery, which had not
been conducted prior to the initial trial listing in September, 2015. Moreover, granting
Green Tree the right to send a corrected foreclosure notice in August, 2016 did not
prejudice Crawford and Kerns because they remained in possession of the premises
without payment for the same. Crawford challenges this Court's propriety in granting
Summary Judgment after the Court had denied Summary Judgment on two prior
occasions. This Court's review of the record details intense Court oversight of the
pleadings and rejection of the first two Summary Judgment Motions because of
questions raised by Crawford as to document authenticity or the status of the pleadings.
The Amended Complaint by Ditech responded appropriately to all prior Court inquiry.
This Court's review of the Crawford and Kerns depositions and the deposition of
Stephanie Cejas, a foreclosure mediation specialist and corporate designee on behalf of
Green Tree Servicing conducted by Crawford established no error in the creation,
recording, assigning, noticing and defaulting on the mortgage and note.
Proceedings in mortgage foreclosure in the Commonwealth of Pennsylvania are
governed by Pa. R.C.P. Nos. 1141 through 1150. Rule No. 1147 requires a Plaintiff to
set forth in the Complaint: 1.) The parties to and the date of the mortgage, and any
assignments, and the statement of the place of record of the mortgage and
assignments; 2.) A description of the land subject to the mortgage; 3.) The names,
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addresses and interests of the Defendants in the action and that the present real owner
is unknown if the real owner is not made a party; 4.) A specific averment of default; 5.)
An itemized statement of the amount due; 6.) A demand for judgment for the amount
due. Rule No. 1148 authorizes a Defendant to plead a counterclaim which arises from
the same transaction or occurrence or series of transactions or occurrences from which
the plaintiff's cause of action arose.
In this proceeding, Ditech has established each of the requirements detailed in
Rule No. 1147 to be awarded judgment in its favor. Ditech is proceeding in a limited in-
rem mortgage foreclosure proceeding and Crawford and Kerns have not established a
proper defense. Nicholas v. Hoffman. 158 A.3d 675 (Pa. Super. 2017), Chrysler First
Bus. Credit Corp. v. Gourniak. 601 A.2d ?:ilS(Pa. Super. 1992), Cunningham v
McWilliams, 714 A.2d 1054 (Pa. Super 1998). Ditech has established possession of the
original note endorsed in blank and remains in possession of the note. Bank of America,
N.A. v. Gibson, 102 A.3d 462 (Pa. Super. 2014). The description of the premises and
the identification of the parties are established in the record. The affidavit of Stewart
Derrick, a corporate litigation representative with Ditech Financial, LLC established
possession of the note, proper corporate identification and the default in payment.
(Exhibit A to Ditech's Motion for Summary Judgment). Crawford and Kerns do not
challenge the default in payments. Crawford's counter-claims are improper because the
rules limit the same to those being a part of, or incident to, in the creation of the
mortgage itself. Mellon Bank, N.A. v. Joseph. 406 A.2d 1055 (Pa. Super. 1979). Pa.
R.C.P. No. 1148 does not allow a defendant in a counterclaim to an in-rem mortgage
foreclosure proceeding to pursue an action in personam for money damages. New York
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Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951 (Pa. Super.1987). Crawford and
Kerns purchased the real estate on September 6, 2002. The original mortgage securing
the real estate on behalf of Weichert Financial Services contained the same MERS
designee as mortgagee as did the refinanced mortgage presented herein in 2004
(Exhibit 2 and 3 to Ditech Motion for Summary Judgment). The May 19, 2004 settlement
sheet, after refinance, shows the satisfaction of the Weichert mortgage through a payoff
to Homecomings Financial (Exhibit 14 to Ditech Motion for Summary Judgment).
Crawford's challenges to MERS were rejected in Bank of America v. Gibson, \t)2.
A, 3d, �{pt (Pa. Super. 2014). Crawford's demand for Fannie Mae to be joined in this
proceeding was rejected in PHH Mortg. Corp. v. Powell, 100 A.3d 611 (Pa. Super.
2014).
Defendant Crawford was afforded a period of almost four years from
commencement of this litigation through entry of Summary Judgment to identify any
error by Ditech in this proceeding and the record before this Court fails to establish any
proper defense.
This Court can ascertain no deprivation to Crawford of his right to trial in this
proceeding. On the contrary, the Court has afforded to him every opportunity to
address, reinstate or to resolve his admitted default of payment to Ditech. Only limited
factual issues are presented to a Court in an in-rem proceeding. Defendants' repeated
attempts to interject arguments which may be appropriate in other forums are improper.
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For the reascas above, this Opinion is written in support of the orders of Judge Fizzano
Cannon and this Court.
BY THE COURT:
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