U.S. Bank Trust v. Geesey, K.

J. S40014/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
U.S. BANK TRUST NATIONAL : IN THE SUPERIOR COURT OF
ASSOCIATION, NOT IN ITS : PENNSYLVANIA
INDIVIDUAL CAPACITY BUT SOLELY AS :
TRUSTEE FOR SRMOF REO 2011-1 :
TRUST :
:
v. :
:
KENNETH G. GEESEY, WENDY A. : No. 1888 WDA 2014
GEESEY, :
:
Appellants :
Appeal from the Order, October 14, 2014,
in the Court of Common Pleas of Blair County
Civil Division at No. 2012-GN-3788
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 15, 2015
Kenneth G. Geesey and Wendy A. Geesey appeal from the order
entered October 14, 2014, granting plaintiff/appellee, U.S. Bank Trust,
N.A.’s (“U.S. Bank”) second motion for summary judgment in this mortgage
foreclosure action. Upon careful review, we affirm.
On April 9, 2007, appellants executed a Note to U.S. Bank’s
predecessor-in-interest, PNC Bank, N.A., in the amount of $240,000.
Shortly thereafter, the loan was assigned to CitiMortgage, Inc., a subsidiary
of Citigroup, Inc., and subsequently to U.S. Bank. The Note was secured by
a Mortgage on real property situated at 617 South Pine Street, Altoona.
* Retired Senior Judge assigned to the Superior Court.
J. S40014/15
Appellants were unable to meet their monthly payment obligations, and on
May 26, 2011, they entered into a written Loan Modification Agreement
(“the 2011 Loan Modification”) with U.S. Bank’s mortgage servicer,
Selene Finance, LP. Appellants made monthly payments under the
2011 Loan Modification for five consecutive months from June through
October 2011. Appellants failed to make the monthly mortgage payment
due November 1, 2011, and are currently in arrears. On or about January 6,
2012, appellants received Notice of Intention to Foreclose on Mortgage
pursuant to Act 6 of 1974; and a complaint in mortgage foreclosure was filed
on November 29, 2012.
Appellants filed an answer and new matter on December 18, 2012,
and a reply to new matter was filed on January 3, 2013. U.S. Bank filed a
motion for summary judgment which was denied on March 7, 2014.
Following additional discovery, U.S. Bank filed a second summary judgment
motion which was granted on October 14, 2014, and an in rem judgment
was entered in favor of U.S. Bank and against appellants for $297,176.21,
plus costs and interest. This timely appeal followed. Appellants have
complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has
filed a Rule 1925(a) opinion.
Appellants have raised the following issues for this court’s review:
1. WHETHER THE TRIAL COURT ERRED IN
CONCLUDING THE GEESEYS WERE NOT
UNDER ECONOMIC DURESS AT THE TIME THEY
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SIGNED THE MORTGAGE NOTE WITH
PLAINTIFFS?
2. WHETHER THE TRIAL COURT ERRED IN
CONCLUDING THE LOAN MODIFICATION
AGREEMENT WAS ENFORCEABLE?
3. WHETHER THE TRIAL COURT ERRED IN
GRANTING U.S. BANK TRUST NATIONAL
ASSOCIATION’S SECOND MOTION FOR
SUMMARY JUDGMENT WHERE THE GEESEYS
ARE CURRENTLY PLAINTIFFS IN AN ACTION
AGAINST THE PREDECESSOR MORTGAGE
COMPANY TO U.S. BANK TRUST NATIONAL
ASSOCIATION?
Appellants’ brief at 4.
Summary judgment may be granted when the
pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
judgment as a matter of law. Pa.R.C.P. 1035(b),
42 Pa.C.S.A. When considering a motion for
summary judgment, the trial court must examine the
record in the light most favorable to the non-moving
party, accept as true all well-pleaded facts in the
non-moving party’s pleadings, and give him the
benefit of all reasonable inferences drawn therefrom.
Dibble v. Security of America Life Ins., 404
Pa.Super. 205, 590 A.2d 352 (1991); Lower Lake
Dock Co. v. Messinger Bearing Corp., 395
Pa.Super. 456, 577 A.2d 631 (1990). Summary
judgment should be granted only in cases that are
free and clear of doubt. Marks v. Tasman, 527 Pa.
132, 589 A.2d 205 (1991). We will overturn a trial
court’s entry of summary judgment only if we find an
error of law or clear abuse of discretion. Lower
Lake Dock Co., supra.
DeWeese v. Anchor Hocking Consumer and Indus. Products Group,
628 A.2d 421, 422-423 (Pa.Super. 1993).
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The holder of a mortgage has the right, upon default,
to bring a foreclosure action. Cunningham v.
McWilliams, 714 A.2d 1054, 1056–57 (Pa.Super.
1998). 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.
Bank of America, N.A. v. Gibson, 102 A.3d 462, 464, 465 (Pa.Super.
2014), appeal denied, 112 A.3d 648 (Pa. 2015).
In their first argument on appeal, appellants claim that they signed the
2011 Loan Modification under economic duress. Appellants complain that
U.S. Bank failed to honor a prior loan modification agreement between
appellants and U.S. Bank’s predecessor-in-interest, CitiMortgage, Inc.; that
appellants were given a short amount of time to execute and return the
agreement and did not have the opportunity to consult with counsel; and
that appellants were not sophisticated in complex financial matters and were
essentially given a Hobson’s choice of either signing the agreement with
non-negotiable terms, without benefit of counsel and on short notice, or
facing certain foreclosure on their home. (Appellants’ brief at 14-15.)
Our supreme court defined duress as follows:
The formation of a valid contract requires the mutual
assent of the contracting parties. Mutual assent to a
contract does not exist, however, when one of the
contracting parties elicits the assent of the other
contracting party by means of duress. Duress has
been defined as:
That degree of restraint or danger, either
actually inflicted or threatened and
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impending, which is sufficient in severity
or apprehension to overcome the mind of
a person of ordinary firmness. . . . The
quality of firmness is assumed to exist in
every person competent to contract,
unless it appears that by reason of old
age or other sufficient cause he is weak
or infirm. . . . Where persons deal with
each other on equal terms and at arm’s
length, there is a presumption that the
person alleging duress possesses
ordinary firmness. . . . Moreover, in the
absence of threats of actual bodily harm
there can be no duress where the
contracting party is free to consult with
counsel . . . .
McDonald v. Whitewater Challengers, Inc., 116 A.3d 99, 114 (Pa.Super.
2015), quoting Degenhardt v. Dillon Co., 669 A.2d 946, 950 (Pa. 1996)
(citations and punctuation omitted) (emphasis deleted).
Economic duress, i.e., business or economic
compulsion, is a form of duress. [Tri–State
Roofing Co. of Uniontown v. Simon, 142 A.2d
333, 335 (1958)]. The Tri–State Court defined
economic duress as follows:
To constitute duress or business
compulsion there must be more than a
mere threat which might possibly result
in injury at some future time, such as a
threat of injury to credit in the indefinite
future. It must be such a threat that, in
conjunction with other circumstances and
business necessity, the party so coerced
fears a loss of business unless he does so
enter into the contract as demanded.
Id. at 20-21, 142 A.2d at 335 (citation and
punctuation omitted).
Id. at 114-115.
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Here, appellants alleged in their brief in opposition to the motion for
summary judgment that they received the 2011 Loan Modification on
May 25, 2011, and the cover letter indicated it needed to be executed and
returned to U.S. Bank by May 27, 2011. Therefore, appellants only had
approximately 24 hours to look over the document, and there was no
opportunity to have it reviewed by an attorney. However, according to
U.S. Bank, appellants knew the terms of the Loan Modification Agreement
offer three months prior, when they entered into a three-month trial
Forbearance Agreement.
At any rate, as the trial court observes, it is not commonplace to have
the advice of legal counsel for consideration of a loan modification
agreement unless a lawsuit has already commenced. (Trial court opinion,
12/12/14 at 4.) In this case, no mortgage foreclosure action had
commenced at the time of the 2011 Loan Modification and the loss of
appellants’ home was not imminent. (Id.) Certainly, an implied threat of a
mortgage foreclosure action is not the sort of “duress” that would void an
otherwise valid loan modification agreement. See Tri-State Roofing, 142
A.2d at 335 (“The threat of a civil suit for a good cause of action does not
constitute duress”) (citations omitted). In addition, we reject appellants’
characterization of themselves as unsophisticated mortgagors, where Mr.
Geesey is a financial planner and they had admittedly engaged in loan
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modification negotiations with U.S. Bank’s predecessor-in-interest,
CitiMortgage.
We also agree with the trial court that even if appellants were
somehow coerced into executing the 2011 Loan Modification, they
subsequently ratified the agreement by making payments for five months
thereafter, without complaint.
A party who possesses a power of avoidance for
business coercion loses it by electing to affirm the
transaction. Ratification results if a party who
executed a contract under duress accepts the
benefits flowing from it, or remains silent, or
acquiesces in the contract for any considerable
length of time after the party has the opportunity to
annul or avoid the contract.
National Auto Brokers Corp. v. Aleeda Development Corp., 364 A.2d
470, 476 (Pa.Super. 1976) (citations omitted). Appellants made payments
under the terms of the 2011 Loan Modification for five months during which
they could have sought to void the contract or consult with counsel. (Trial
court opinion, 12/12/14 at 5.)
Regarding the alleged loan modification agreement between appellant
and CitiMortgage in 2009, that has no bearing on this case.1 U.S. Bank is
not a party to that litigation between appellants and CitiMortgage, and the
2011 Loan Modification would supersede any prior agreement. The 2011
1
Appellants concede that there was no written loan modification agreement
in 2009, but contend that CitiMortgage’s cashing of their checks constituted
an acceptance of their modification offer.
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Loan Modification is the controlling instrument. Any previous loan
modification agreement between appellants and CitiMortgage is irrelevant to
the question of whether the 2011 Loan Modification was entered into under
economic duress, as appellants allege. For the foregoing reasons, we
determine that it was not.
In their second issue on appeal, appellants argue that the trial court
erred in concluding the 2011 Loan Modification was enforceable. Appellants
concede that the resolution of this issue depends upon issues one and three.
(Appellants’ brief at 15.) We have already determined that the 2011 Loan
Modification was not signed under duress and that appellants effectively
ratified the agreement by making regular payments for five months
thereafter.
Third, appellants argue that summary judgment for U.S. Bank was
inappropriate where they are still engaged in litigation against U.S. Bank’s
predecessor-in-interest, CitiMortgage, regarding the alleged 2009 loan
modification agreement. As the trial court states, “the ‘ongoing litigation’
Appellants refer to involves a different party and was filed late in the course
of the current litigation.” (Trial court opinion, 12/12/14 at 5.) The litigation
involving CitiMortgage is irrelevant to appellants’ admission of default in this
case. Appellants have admitted that they entered into the 2011 Loan
Modification; that they made payments for five consecutive months under
the terms of the 2011 Loan Modification; that they failed to make the
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November 2011 monthly mortgage payment; and that they have failed to
tender monies sufficient to cure the full mortgage arrears on the delinquent
account. (Appellants’ admissions, 7/25/14; docket #27.) Therefore,
appellants have admitted all essential elements U.S. Bank needed to prove
its case and summary judgment was appropriate.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
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