Santander Bank v. Viatcheslav, B.

J-S18032-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SANTANDER BANK, N.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VIATCHESLAV BOIKO AND LUDMILA :
BOIKO :
: No. 1395 MDA 2019
Appellants :
Appeal from the Order Entered July 23, 2019
In the Court of Common Pleas of Centre County Civil Division at No(s):
18-4036
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: MAY 18, 2020
Appellants/Defendants, Ludmila and Viatcheslav Boiko, appeal pro se
from the order granting summary judgment in favor of Appellee/Plaintiff
Santander Bank (“Santander”) in this mortgage foreclosure action.
Appellants’ failure to state issues, make cogent legal arguments, and meet
other briefing requirements in their appellate brief prevents us from providing
meaningful review of their appeal. Accordingly, we quash.
On October 9, 2018, Santander filed a Complaint against Appellants
alleging that, on August 3, 2011, they signed with Santander a Home Equity
Line of Credit Agreement and obtained a line of credit in the amount of
$144,000.00. Santander secured the loan with a Mortgage encumbering
Appellants’ principal residence located at 1174 Westerly Parkway, State
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S18032-20
College, Pennsylvania. Approximately five years later, starting on October 23,
2016, and for every month thereafter, Appellants failed to make the monthly
payment due under the Agreement and Mortgage. By the terms of the
Agreement and Mortgage, Appellants were, therefore, in default.
Santander Bank’s Complaint further alleged that Act 91 Notices of
Default and Intention to Foreclose Mortgage were sent to Appellants before
the foreclosure action was filed, but Appellants failed to respond or cure the
default. Copies of the Notices were attached as exhibits to the Complaint. At
the time the Complaint was filed, the amount owed to the bank was
$134,482.26, with interest accruing on the unpaid balance at the rate of
$18.48 per day. Appellants filed an Answer that was unresponsive to the
allegations set forth in the Complaint except to deny the averment that
Ludmila Boiko was a co-mortgagor.
On February 24, 2019, Santander filed a Motion for Summary Judgment,
to which Appellants again offered the response—without any supporting
documentation—denying that Ludmila Boiko was a co-mortgagor, even though
her signature appears on the Mortgage. Oral argument was held on July 19,
2019, where Appellants also alleged housing conditions they described as
“unlivable” through no fault of their own, financial difficulties, refusal of
assistance from public agencies, and the bank’s unwillingness to grant
Appellants’ request to modify loan terms as reasons to deny the bank’s
motion. The court, however, viewing Appellants’ issues as unfortunate but,
ultimately, immaterial to the mortgage foreclosure action filed against them,
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granted summary judgment in favor of Santander Bank. This timely appeal
followed.
Our standard of review of an order granting summary judgment requires
us to determine whether the trial court abused its discretion or committed an
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,
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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 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, we note that Appellate briefs must conform materially to the
requirements of the Pennsylvania Rules of Appellate Procedure, and this Court
may quash or dismiss an appeal if the defect in the brief is substantial.
Commonwealth v. Adams, 882 A.2d 496, 497–98 (Pa.Super. 2005);
Pa.R.A.P. 2101. Although this Court is willing to construe liberally materials
filed by a pro se litigant, a pro se appellant enjoys no special benefit.
Accordingly, pro se litigants must comply with the procedural rules set forth
in the Pennsylvania Rules of the Court. Commonwealth v. Lyons, 833 A.2d
245, 251–52 (Pa.Super. 2003). “This Court will not act as counsel and will
not develop arguments on behalf of an appellant.” Coulter v. Ramsden, 94
A.3d 1080, 1088 (Pa.Super. 2014).
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The Pennsylvania Rules of Appellate Procedure provide guidelines
regarding the required content of an appellate brief as follows:
Rule 2111. Brief of the Appellant
(a) General Rule.—The brief of the appellant, except
as otherwise prescribed by these rules, shall consist
of the following matters, separately and distinctly
entitled and in the following order:
(1) Statement of jurisdiction.
(2) Order or other determination in question.
(3) Statement of both the scope of review and the
standard of review.
(4) Statement of the question involved.
(5) Statement of the case.
(6) Summary of argument.
(7) Statement of the reasons to allow an appeal to
challenge the discretionary aspects of a sentence, if
applicable.
(8) Argument for the appellant.
(9) A short conclusion stating the precise relief
sought.
(10) The opinions and pleadings specified in
Subdivisions (b) and (c) of this rule.
(11) In the Superior Court, a copy of the statement of
errors complained of on appeal, filed with the trial
court pursuant to Rule 1925(b), or an averment that
no order requiring a statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) was
entered.
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Pa.R.A.P. 2111(a)(1)–(10) (emphasis added). Rules 2114
through 2119 detail the material to be included in briefs on appeal.
See Pa.R.A.P. 2114–2119. Specifically, Rule 2119 addresses the
argument section of appellate briefs and provides, in part, as
follows:
Rule 2119. Argument
(a) General rule. The argument shall be divided into
as many parts as there are questions to be argued;
and shall have ... such discussion and citation of
authorities as are deemed pertinent.
Pa.R.A.P. 2119(a).
It is well-established that “[w]hen issues are not properly raised
and developed in briefs, when the briefs are wholly inadequate to
present specific issues for review, a court will not consider the
merits thereof.” Commonwealth v. Sanford, 299 Pa. Super. 64,
445 A.2d 149, 150 (1982).
Commonwealth v. Tchirkow, 160 A.3d 798, 804–05 (Pa.Super. 2017). See
also In re Estate of Whitley, 50 A.3d 203, 209-10 (Pa.Super. 2012)
(explaining that the failure to cite relevant legal authority constitutes waiver
of the claim on appeal).
Herein, Appellants’ brief, which consists of 16 pages of running narrative
without any identification of specific issues or argument,1 runs afoul of
____________________________________________
1 Appellants’ brief repeatedly alleges that the trial court, in granting summary
judgment, “conspired” with the housing authority, the powerful banks, and
their lawyers “to ruin Appellants financially.” Central to this theme is a
complaint that the trial court wrongly credited plaintiff bank’s testimony and
evidence while finding Appellants’ testimony well-intentioned but largely
irrelevant. Our review of the record, however, finds support for the court’s
weighing of the evidence, such that we find no abuse of discretion or error of
law with the court’s assessment.
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Pa.R.A.P. 2111(a)’s directive that a brief shall include all requisite content
enumerated under separate and distinct headings. More detrimental to
Appellants’ cause, however, is that their brief offers only bare assertions
without a single cogent legal argument supported with citations to the record
and controlling authority, in contravention of Pa.R.A.P. 2119(a). Because of
the considerable defects in Appellant's brief, we are unable to perform
meaningful appellate review. We, therefore, quash the present appeal.
Appeal quashed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/18/2020
____________________________________________
Finally, to the limited extent Appellants’ brief reflects their Pa.R.A.P. 1925(b)
statement, we adopt the responsive and well-reasoned Pa.R.A.P. 1925(a)
opinion of the Honorable Katherine V. Oliver, in which she comprehensively
discusses each claim with proper consideration of the record and controlling
law warranting the grant of summary judgment in the instant matter. (See
Trial Court Opinion, filed September 27, 2019).
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-, Circulated 04/24/2020 09:43 AM
IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
CIVIL ACTION� LAW
SANTANDER BANK, N.A.
Plaintiff
v.
VIATCHESLAV BOIKO,
a/k/a VIATCHESLAV Y. BOJKO
and
LUDMILA BOJKO
Defendants
Attorney for Plaintiff;
Attorney for Defendants:
Oliver, J
1925(a) Opinion
Defendants appeal this Court's Order granting. summary judgment in favor of Plaintiff in
. mortgage
this . . foreclosure action. By Order dated August 20, 2019, Defendants were directed to
file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of
Appellate Pro�dure 1925.(b). Defendants filed a timely con�ise �tement of �s.
.. .
complained of on appeal. r'1925(b)
.
Statement'·') on September 10, 2019, in which they. assert
nine separately numbered contentions of error. This Opinion is entered pursuant ta Pennsylvania
Rule of Appellate Procedure 1925(a).
Items (1) and (2) of Defendants' 1925{b) Statement involve Defendants' allegations that
the documents accepted into the record by the prothonotary were illegible and should never have-
_beeu accepted into the court record.' Initially, the Court notes that the documents appended to
Plaintiff's summary judgment motion as exhibits thereto were also attached to the Complaint as
originally filed in this case. Defendants did not file timely preliminary objections to Plaintiff's
complaint seeking to stdke the complaint exhibits, nor did they claim in their Answer that the
- - �. . . . ... . . . . . � .
exhibits were illegible, _The suggestion that a timely motion to "strike and quash the complaint"
!. '
was filed .is ��� �dis not supported. by the record. Furthermore, loo� to the
• ' • • • • • 4 !
• •
;
documents themselves, the Court did not .fmd them to be illegible, as stated at the time of
argument on Plaintiff's summary judgment motion. As to the suggestion in Defendants' 1925(b)
lo owos
Statement that a laaguage barrier exists, the Court notes that a certified interpreter was secured ·
by the Court for argument on Plaintifrs summary judgment motion. On review, the Court does
not believe items (1) or (2) of Defendants' 1925(b) Statement raise any meritorious issue of
error.
Items (3) and (4) of Defendants' 1925(b) Statement lodge complaints about the
undersigned judge presiding, and suggest that the Court took direction from the opposing party
end was biased in its rulings. Allegations of unethical conduct by opposing counsel are also
raised. The Court did not observe any such conduct by counsel, and is not aware of any basis for
these allegations. Wrth respect to the presiding judge, Defendants did not make a motion to
recuse, nor is there any reason for recusal of which this Court is aware. Tue undersigned sat as a
neutral, impartial decision maker in this case, and did not favor either party. 'Toe fact that the·
undersigned was also the presiding judge in another case involving Defendants, apparently still
pending in the appellate courts, would not have been a reason for recusal or disqualification even.
had the issue been raised by Defendants prior to the entry of summary judgment. The Court
submits that Defendants' items (3) and (4) do not raise any.meptprlous issue of error.
Items (5) through (9), inclusive, are addressed mote to the substantive nature of the
Court's summary judgment ruling. (See Defs.' 1925(b) Statement, ,rf 5-9). Summary judgment
is proper when "there is no genuine issue of any material fact as to a necessary element of a
cause of action, or concerning any defense which couldbe established by additional discovery or
expert report," Cunningham v. Williama, 114 A2d 1054, 1057 (Pa. Super. 1998)(citing
Pa.R.C.P. 1035 .2( 1 )). In responding to a properly supported motion for summary judgment, the
opposing party must do more than simply rely upon mere allegations and denials of the
pleadings. PaR.C.P. J 03 5.3(a). The opposing party must identify issues of fact arising from
record evidence that controvert the evidence cited in support of the motion, or point to evidence
in the record establishing the facts essential to the cause of action or defense the motion cites as
not having been produced. See Pa.R.C.P. 1035.3(a)(l)-(2). A party may not avoid summary
judgment based on bald, conclusory accusations. McCain_ v. Penn Bank, 549 A2d 1311 (Pa.
Super. 1998).
This case involves an in rem action in mortgage foreclosure. Under Pennsylvania law,
summary judgment may properly be entered in a mortgage foreclosure action w:lien the
mortgagors admit the mortgage is in default, admit 'they have failed to pay interest1 and admit the
I
amount of the recorded mortgage. Cunningham, 714 A.2d at 1057; Landau v. Western
Pennsylvania Nat 'I Bank, 282 A.2d 335 (Pa. Super. 2015). The failure to properly deny factual
allegations in a complaint will result in an admission of those allegations, See Pa.R.C.P.
1029(b); First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 691-92 (Pa. Super. 1995).
As Plaintiff' points out in its summary judgment motion, Plaintiff attached the underlying
loan agreement ("Agreement") and the mortgage ("Mortgage") as exhibits to its Complaint. and
set forth allegations, inter alia, that the Mortgage encumbered property located at 1174 Westerly
Parkway, State College, Pennsylvania, that Defendants are the mortgagors, that the monthly
payments: under the Agreement and Mortgage were not made when due as of October 23, 2016,
that no payments had been made since that time, and that a default existed under the Agreement
and the ·l'4ortgage. The Complaint further alleged that Act 91 Notices were sent to both
Defendants before the action was commenced, and that the default was not cured. Copies of the
Act 91 Notices were attached as exhibits to Plaintiff's Complaint along withmarnng receipts. In
addition, the Complaint set forth the amount owed as of the time the Complaint was filed. (See
Compl., generaUy). In accordance with Cunningham and Landau, supra, these allegations are
sufficient to state «prtma faaie claim in an in rem foreclosure action.
With one exception, Defendants failed to address the substance of any of the Complaint
allegations summarized above in their Answer. (See Defs.' Answ., filed 11 -26-18). AB to the
one exception, Defendants denied that Defendant Ludmila Boiko was a co-mortgagor, despite
the fact that, on 1he face of it, her signature appears to be on the Mortgage. (See id. at ff 1-2). In
responding to Plaintiff's summary judgment motion, Defendants continued with the bald denial
that Ludmila Boiko was a co-mortgagor, without pointing to any record evidence to support that
denial. Given that Ludmila Boiko's signature appears to be on the Mortgage, and that
Defendants offered no more than a conclusory denial on this issue, the Court determined that
Plaintiff satisfied its summary judgment burden of demonstrating the absence of any genuine
issue of fact. With respect to the other allegations of the Complaint, the Court agreed that these
were admitted by Defendants due to their failure to properly deny them in their Answer.
In their response to Plaintiff's Motion for Summary Judgment filed April 9, 2019,
Defendants alleged various circumstances, including allegations regarding damage at the subject
premises and "unlivable" conditions, alleged denials by Plaintiff of loan modification requests
made by Defendants, and personal circumstances of Defendants, including a lack of resources
3
and lack of assistance from various agencies. These issues are also included in Defendants'
1925(b) Statement. (See Defs.' 1925(b) Statement, ml 5,7). Although these circumstances are
unfortunate, Defendants did not demonstrate that any of these issues were material to resolution
of the mortgage foreclosure action such as to preclude summary judgment against them.
Defendants also allege a general unawareness of the Act 91 Notices sent to them by Plaintiff
before the litigation was commenced. (See Defs.' Resp. MSJ, 13). As an initial point, as noted
above, Plaintiff's Complaint alleged that Act 91 Notices were duly sent to Defendants, and the
Act 91 Notices end mailingreceipts were attached as complaint exhibits. Defendants failed to
deny receipt of the Act 91 Notices in th.eir Answer, thereby a.d.n:iittingthis allegation pursuant to
Pennsylvania Rule of Civil Procedure 1029(b). Furthermore, the Court concluded that
Defendants' contention that they did "not recall gettjhg [the] Act 91 Notice," (see Def.s.' Answ.
to MSJ,,: 3), failed to create an issue of material fact.
For the reasons discussed above, the Court granted summary judgment in Plaintiff's
favor. The Court submits that this ruling was not in error.
BY THE COURT:
Date: . q-a 'J-I� �-
·Kat:b.erine V. Oliver, Judge
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