Opinion
J-A12019-18 No. 2677 EDA 2017
08-22-2018
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 v. KENT M. OZMAN A/K/A KENT OZMAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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.
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.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 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].
On appeal, Ozman contends the trial court erred in granting Deutsche Bank's motion for summary judgment. See Ozman's Brief at 10. He argues 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.
In 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.
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." 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; (3) Ozman's general denials to Deutsche Bank's accusations in his pleadings had the effect of admissions; (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;" (5) Ozman effectively admitted the mortgage was in default and did not present a valid defense; and (6) the numerous exhibits attached to Deutsche Bank's motion adequately support the conclusion that Ozman's mortgage was in default).
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).
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.").
Id. at 3, citing Gateway Towers Condo Ass'n v . Krohn , 845 A.2d 855, 858 (Pa. Super. 2004).
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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/22/18
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