Deutsche Bank National Trust v. Ozman, K.

J-A12019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEUTSCHE BANK NATIONAL TRUST : IN THE SUPERIOR COURT OF
COMPANY, AS TRUSTEE IN TRUST : PENNSYLVANIA
FOR THE REGISTERED HOLDERS OF :
MORGAN STANLEY ABS CAPITAL I :
TRUST 2004-HE6, MORTGAGE PASS- :
THROUGH CERTIFICATES, SERIES :
2004-HE6 :
:
: No. 2677 EDA 2017
v. :
:
:
KENT M. OZMAN A/K/A KENT OZMAN :
:
Appellant :
Appeal from the Order Entered July 21, 2017
In the Court of Common Pleas of Northampton County
Civil Division at No(s): C-48-CV-2014-7396
BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED AUGUST 22, 2018
Kent M. Ozman a/k/a Kent Ozman appeals from the order entered on
July 21, 2017, in the Court of Common Pleas of Northampton County. The
court granted Deutsche Bank National Trust Company, as Trustee in Trust for
the Registered Holders of Morgan Stanley ABS Capital I Trust 2004-HE6,
Mortgage Pass-Through Certificates, Series-HE6’s (“Deutsche Bank’s”) motion
for summary judgment against Ozman in a mortgage foreclosure action. On
appeal, Ozman argues summary judgment was improper due to the presence
of genuine issues of material fact. Based upon the following, we affirm.
J-A12019-18
The trial court set out the relevant facts and procedural history as
follows:
[Deutsche Bank] filed a Complaint in Mortgage Foreclosure
(“Complaint”) against [Ozman] on August 2, 2014. [Deutsche
Bank] averred, inter alia, that [Ozman] defaulted on the mortgage
assigned to [Deutsche Bank] after failing to make scheduled
monthly payments due on August 1, 2012, and each month
thereafter. Compl. ¶ 6, 8. [Deutsche Bank] seeks an in rem
judgment against [Ozman] in the amount of $379,790.16
together with interest, late charges, fees, and other charges
collectable under the mortgage, including attorney fees and costs.
[Ozman] filed his Answer with New Matter to [Deutsche Bank’s]
Complaint in Mortgage Foreclosure (“Answer with New Matter”) on
May 29, 2015. [Deutsche Bank’s] Reply to [Ozman’s] New Matter
was filed on August 3, 2015.
On December 29, 2016, [Deutsche Bank] filed its Motion for
Summary Judgment (the “Motion”), Memorandum of Law in
Support of Summary Judgment, and Affidavit in Support of
Summary Judgment. On January 24, 2017, [Ozman] filed his
Response to the [Deutsche Bank’s] Motion for Summary Judgment
in Mortgage Foreclosure and Brief of [Ozman] in Opposition to the
Motion for Summary Judgment Filed on Behalf of the [Deutsche
Bank].
Trial Court Opinion, 7/21/2017, at 2. On July 21, 2017, the court granted
Deutsche Bank’s motion for summary judgment. Ozman filed this timely
appeal and submitted a Pa.R.A.P. 1925(b) concise statement of matters
complained of on appeal.
On appeal, Ozman contends the trial court erred in granting Deutsche
Bank’s motion for summary judgment.1 See Ozman’s Brief at 10. He argues
____________________________________________
1In Ozman’s statement of questions involved, he lists three issues for review.
See Ozman’s Brief at 4. However, a review of his argument reveals he has
combined those claims into one issue. See id. at 10-23.
-2-
J-A12019-18
summary judgment was improper because the trial court ignored the presence
of genuine issues of material fact. See id. at 15-18 (i.e., “[Ozman’s] answers
to the Complaint, with the New Matter asserted made it clear that there are
disputes of fact which negate the Bank’s ability to satisfy all elements of its
legal action.”). He also contends discovery should have been conducted, as it
would have produced documents “regarding the propriety of the loan from its
very inception, through [Deutsche Bank’s] ability to sue [Ozman] thereunder.”
Id. at 19.
Our standard of review is well-settled:
We review an order granting summary judgment for an abuse of
discretion. Our scope of review is plenary, and we view the record
in the light most favorable to the nonmoving party. A party
bearing the burden of proof at trial is entitled to summary
judgment whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or defense which
could be established by additional discovery or expert report. In
response to a summary judgment motion, the nonmoving party
cannot rest upon the pleadings, but rather must set forth specific
facts demonstrating a genuine issue of material fact.
Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014) (citations
omitted). Furthermore, we are guided by the following:
[t]he holder of a mortgage has the right, upon default, to bring a
foreclosure action. The 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 464-465 (citation omitted). “This is so even if the mortgagors have not
admitted the total amount of the indebtedness in their pleadings.”
-3-
J-A12019-18
Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998),
appeal denied, 734 A.2d 861 (Pa. 1999).
The trial court, in its Rule 1925(a) opinion adopting the reasoning from
its order granting summary judgment, provided a thorough and well-reasoned
discussion of Ozman’s arguments on appeal. See Trial Court Opinion,
7/21/2017, at 2-7 (finding (1) Ozman never raised preliminary objections to
contest Deutsche Bank’s ability to sue; (2) Ozman’s argument that discovery
was necessary is “unsympathetic,” as he had not requested discovery in the
year and a half since pleadings had closed;2 (3) Ozman’s general denials to
Deutsche Bank’s accusations in his pleadings had the effect of admissions; 3
(4) summary judgment is proper where “the mortgagor admits that the
mortgage is in default and fails to sustain a cognizable defense to the claim;”4
(5) Ozman effectively admitted the mortgage was in default and did not
present a valid defense; and (6) the numerous exhibits attached to Deutsche
____________________________________________
2 See Trial Court Opinion, 7/21/2017, at 5, citing First Wisconsin Trust Co.
v. Strausser, 653 A.2d 688, 695 (Pa. Super. 1995) (holding defendant’s
argument that the lack of discovery bars summary judgment is
“unsympathetic,” as defendant did not request discovery in the two years
since the Answer was filed).
3 See id. at 6, citing Pa.R.C.P. 1029(d) (“A general denial or a demand for
proof ... shall have the effect of an admission.”).
4Id. at 3, citing Gateway Towers Condo Ass’n v. Krohn, 845 A.2d 855,
858 (Pa. Super. 2004).
-4-
J-A12019-18
Bank’s motion adequately support the conclusion that Ozman’s mortgage was
in default).
Our review of the record reveals ample support for the trial court's
conclusions. Accordingly, we adopt the reasoning of the trial court and affirm
its order in favor of Deutsche Bank.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/18
-5-
Circulated 08/03/2018 01:24 PM
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
COMMONWEALTH OF PENNSYLVANIA
CIVIL DIVISION
DEUTSCHE BANK NATIONAL TRUST: NO: C-48-CV-2014-7396
COMPANY, AS TRUSTEE, IN TRUST :
FOR THE REGISTERED HOLDERS
OF MORGAN STANLEY ABS
CAPITAL I TRUST 2004-HEG,
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2004-HEG, .. ,- ..--. �-'
•....".· !:":-:,
r•
.-.:
-"
Plaintiff ........ �--, (.. -
c:.:
r": ..
v.
KENT M. OZMAN a/k/a KENT � .,.,·::-·r,
OZMAN, �·-'-"
Defendants.
.r:
ORDER OF COURT
AND NOW, this of July, 2017, upon consideration of
Plaintiff's, Deutsche Bank National Trust Company, as Trustee, in trust for the
registered holders of Morgan Stanley ABS Capital I Trust 2004-HE6, Mortgage
Pass-Through Certificates, Series 2004-HE6 ("Plaintiff"), Motion for Summary
Judgment, Memorandum of Law in Support of Summary Judgment, and
Affidavit in Support of Summary Judgment, and Defendant's, Kent M. Ozman
a/k/a Kent Ozman ("Defendant"), Response to the Plaintiff's Motion for
Summary Judgment in Mortgage Foreclosure and Brief of Defendant, Kent M.
Ozman, in Opposition to the Motion for Summary Judgment Filed on Behalf of
the Plaintiff, it is hereby ORDERED that Plaintiff's Motion for Summary
Judgment is GRANTED.
···-·-- -··- -----·-····· -- ···-- ---· -· - -··· �. ··-. --·---- --- ------
STATEMENT OF REASONS
I. Factual Background and Procedural History
Plaintiff filed a Complaint in Mortgage Foreclosure ("Complaint") against
Defendant on August 4, 2014. Plaintiff averred, inter a!ia, that Defendants
defaulted on a mortgage assigned to Plaintiff after failing to make scheduled
monthly payments due on August 1, 2012, and each month thereafter.
Campi. �� 6, 8. Plaintiff seeks an in rem judgment against Defendants in the
amount of $379,79.0.16 together with interest, late charges, fees, and other
charges collectable under the mortgage, including attorney fees and costs.
Defendant filed his Answer with New Matter to Plaintiff's Complaint in
Mortgage Foreclosure ("Answer with New Matter,,) on May 29, 2015. Plaintiff's
Reply to Defendant's New Matter was filed on August 3, 2015.
On December 29, 2016, Plaintiff filed its Motion for Summary Judgment
(the "Motlon"), Memorandum of Law in Support of Summary Judgment, and
Affidavit in Support of Summary Judgment. On January 24, 2017, Defendant
fil�d his Response to the Plaintiff's Motion for Summary Judgment in Mortgage
Foreclosure and Brief of Defendant, Kent M. -Ozman, in Opposition to the
Motion for Summary Judgment Filed on Behalf of the Plaintiff. The matter was
placed on the April 25, 2017, Argument List and was submitted on brief.
II. Legal Standard
After the relevant pleadings are closed, but within such time as to not
unreasonably delay trial, any party may move for summary judgment.
2
Pa.R.C.P. 1035.2(1). Summary judgment, in whole or in part, is proper
"whenever there is no genuine issue of any material fact as to a necessary
element of the cause of action or defense which could be established by
additional discovery or expert report.'' Pa.R.C.P. 1035.2(1). The moving
party bears the burden of proving that no genuine issues of material fact exist.
Burger v. Owens Illinois, Inc., 966 A.2d 611, 614 (Pa. Super. 2009).
Moreover, the record is viewed in the Jig ht most favorable to the non-movant.
New York Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 952 (Pa. Super.
1987). Thus, summary judgment is proper only when the uncontroverted
allegations in the pleadings, depositions, answers to interrogatories,
admissions of record, and submitted affidavits demonstrate that no genuine
issue of material fact exists, and that the moving party is entitled to judgment
as a matter of law. Burger, 966 A.2d at 614.
Summary judgment is proper in an in rem mortgage foreclosure action
where the mortgagor admits that the mortgage is in default and fails to sustain
a cognizable defense to the claim. Gateway Towers Condo. Ass'n v. Krohn,
845 A.2d 855, 858 (Pa. Super .. 2004) (emphasis added). In an action for a
mortgage foreclosure, entry of summary judgment is proper if the mortgagors
admit that the mortgage is in default; that they have failed to pay interest on
the obligation; and that the recorded mortgage is in the specified amount.
Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998) citing
Landau v. W. Pennsylvania Nat. Bank, 282 A.2d 335, 340 (Pa. 1971).
3
--· -- .. ---- - -------------------------- --· ----- -· -- ·- -- -- -- ·--------------
·- .. ··--···· .. _ .
Summary judgment is proper "even if the mortgagors have not admitted the
total amount of the indebtedness in the pleadings." Cunningham, 714 A.2d
at 1057.
III. Discussion
Plaintiff asserts that there is no genuine issue of material fact. Plaintiff
further argues that Defendant's Answer with New Matter admits or generally
denies the elements essential to its cause of action and fails to raise a
cognizable defense or state a claim upon which relief can be granted.
Defendant asserts that "no discovery has been commenced," thereby deeming
summary judgment procedurally improper. Id. at 3. Alternatively, Defendant
argues that his Answer with New Matter does not effectively admit all material
facts but, rather, "make[s] it clear that there are disputes of fact which negate
the Plaintiff's ability to satisfy all elements of its legal action." Br. Def. 6.
On the issue of discovery, Defendant maintains that "through
discovery," he "would seek production of documents within the exclusive
possession of [Plaintiff] ... - regarding the propriety of the loan from its very
inception, through the present Plaintiff's ability to sue the Defendant
thereunder." Br. Def. 9. We first note that Defendant never raised preliminary
objections to contest Plaintiff's ability to sue Defendant and that the record is
devoid any documentation to suggest, for example, that Plaintiff failed to
entertain discovery requests. We further note that Plaintiff's Motion was filed
on December 29, 2016, over a year and a half from the date Defendant filed
4
his Answer with New Matter. Moreover, Defendant has been represented by
the same counsel since the filing of his Answer with New Matter. When faced
with a set of procedural facts remarkably similar to the present case, our
Superior Court responded that it was "unsympathetic," pointing to the fact
that nearly two years had passed from the date the defendant filed his answer.
First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 695 (Pa. Super. 1995).
Our Superior Court reasoned that if the defendant "felt that discovery was so
vital to. hlscase, then he could have taken many different steps to effectuate
that goal." Id. Likewise, we will not deny Plaintiff's Motion because Defendant
now asserts that discovery has not been conducted.1
We turn to whether there remain any material facts remain. The key
paragraph of the Complaint is Paragraph 8, which avers the essential elements
required in a mortgage foreclosure action: that Defendant is in default because
Defendant failed .to make "payments of principal and interest due August 1,
2012, and rnonthlv thereafter." Campi. ,i 8. In his Answer with New Matter,
Defendant's response to Paragraph 8 is as follows:
The allegation that the Mortgage is in default is a conclusion of
law to which no response is required on the part of the Defendant.
The allegation is, therefore, denied and, if relevant, strict proof
thereof is demanded at trial. Furthermore, for the reasons
hereinafter set forth in Defendant's New Matter, the Mortgage is
void and, thus, unenforceable against the Defendant.
1 We also recognize that the Complaint contains many exhibits, including but
not limited to a promissory note between Defendant and the original lender, a deed
to the property at issue, and documentation of the assignment of the mortgage at
issue to Plaintiff.
5
Answer � 8. Reviewing a similarly styled response in an answer, our Superior
Court reasoned, "Such denial is not specific because it fails to allege payments
made under the Mortgage and not otherwise stated in the Complaint." Wells
Fargo Bank, N.A. v. Costantino, No. 607 MDA 2016, 2017 WL 1165254, at *5
(Pa. Super. Ct. Mar. 28, 2017). It is well-settled that a general denial or
demand for proof "shall have the effect of an admission." Pa.R.C.P. 1029(b).
While the phrase "in default" is arguably a conclusion of law to which no
responsive .. pleading is required, see Pa. R.C.P. 1029(d), the substance of
Plaintiff's Paragraph 8 are the details to which Defendant offers no response:
that Defendant failed to make "payments of principal and interest due August
1, 2012, and monthly thereafter." Accordingly, Defendant has effectively
admitted that the mortgage in question was in default and that they have
failed to pay interest on the obligation. Although Defendant's Answer with
New Matter also purports to "specifically den[y] that the sums set forth [in the
Complaint] ... are accurate statements," this does not bar the entry of
summary·judgment. See Cunningham, 714 A.2d at 1057 .
. Finally, Defendant's insistence that "Plaintiff's Motion for Summary
Judgment relies entirely on its own unsupported declarations" is inaccurate.
Br. Def. 11. Attached to Plaintiff's Complaint are a number of documents,
including a Note, mortgage agreement, and Corporate Assignment of
Mortgage, and filed with Plaintiff's Motion is an Affidavit in Support of Motion
for Summary Judgment, which is signed by Laura Lynn Dyson, who is
6
identified as Document Control Officer of Select Portfolio Servicing, Inc., acting
as attorney-in-fact for Plaintiff. Moreover, as discussed above, Defendant has
effectively admitted all material facts. Thus, we grant Plaintiff's Motion.
BY THE COURT:
s��-
7