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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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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J. S40014/15


                   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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J. S40014/15


            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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J. S40014/15


                  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.


                                     -5-
J. S40014/15


     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




                                    -6-
J. S40014/15


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.


                                        -7-
J. S40014/15


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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J. S40014/15


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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