J-S07018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    GREEN TREE SERVICING, LLC                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
                                               :
    KARYN KERNS AND STEWART                    :
    CRAWFORD                                   :
                                               :
                       Appellants              :      No. 2033 EDA 2018

                  Appeal from the Order Entered June 5, 2018
               In the Court of Common Pleas of Delaware County
                       Civil Division at No(s): 14-003867


BEFORE:      NICHOLS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.:                                     Filed: March 23, 2020

        Appellants, Karyn Kerns and Stewart Crawford, appeal from the order

entered in the Delaware County Court of Common Pleas, which granted

summary judgment in favor of Appellee, Green Tree Servicing, LLC (“Green

Tree”)1 in this mortgage foreclosure action. We affirm.

        The relevant facts and procedural history of this case are as follows:

           The initial complaint in this proceeding was filed on April 28,
           2014. … [Appellants] executed a mortgage on May 19,
           2004, which was properly recorded in the office of the
           Recorder of Deeds in Delaware County. The mortgage
           identified the lender as America’s Wholesale Lender and
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 During the course of this litigation, Green Tree changed its name to Ditech
Financial, LLC. For ease of discussion, however, we will continue to use the
name Green Tree throughout this memorandum.
J-S07018-20


       identified “MERS” Mortgage Electronic Registration
       Systems, Inc., as acting nominee for lender and its
       successors and assigns as the mortgagee under the security
       agreement. The borrowers were identified as [Appellants]
       and their signatures appear on Page 15 of the mortgage.
       The Complaint averred that Green Tree was assigned the
       mortgage on June 12, 2013 from Mortgage Electronic
       Registration Systems, Inc. as nominee for America’s
       Wholesale Lender. That assignment was also properly
       recorded in Delaware County Recorder of Deeds office. The
       Complaint averred that only [Appellant Crawford] executed
       the note on May 19, 2004 in the original [principal] amount
       of $180,000.00. The Complaint averred that interest,
       accumulated late charges, escrow, costs of suit and
       attorney’s fees had been incurred since the default. Finally,
       the Complaint averred that proper notice of intention to
       foreclosure (“Act 6 Notice”) 41 P.S. § 403 and notice of
       homeowner’s emergency mortgage assistance (“Act 91
       Notice”) 35 P.S. § 1680.403(c) had been forwarded to
       [Appellants].

       [Appellants] filed a series of Preliminary Objections in
       response to the Complaint.      [Appellant Crawford] was
       admitted on May 22, 2006 to the Bar of the Commonwealth
       of Pennsylvania. On June 16, 2014, he filed, on behalf of
       [Appellant Kerns], now known as Karen M. Crawford,
       Preliminary Objections.     On July 9, 2014, [Appellant
       Crawford] filed Preliminary Objections on his own behalf,
       and then on July 17, 2014 he filed amended/supplemental
       Preliminary Objections on behalf of [Appellant Kerns].
       Green Tree answered the Preliminary Objections on July 7,
       2014, and answered the amended Preliminary Objections on
       September 15, 2014. The Honorable Christine Fizzano
       Cannon, former Judge of the Court of Common Pleas of
       Delaware County, entered an order overruling the
       Preliminary Objections on October 16, 2014. [Appellants]
       then filed an Answer to the Complaint with New Matter and
       Counterclaim on November 7, 2014. [Appellants] asserted
       103 averments in new matter, and pled twelve (12) counts
       in [their] counterclaim which included a Dragonetti claim,
       breach of contract, breach of good faith and fair dealing,
       consumer trade violations, recording law violations, criminal
       law violations, collection practice law violations, RESPA


                                   -2-
J-S07018-20


       violations, misrepresentation/fraud,     unjust   enrichment,
       “RICOH,” corruption and negligence.

       Green Tree responded through the Preliminary Objections.
       On March 11, 2015, Judge Fizzano Cannon sustained the
       Preliminary Objections and struck all counterclaims due to
       lack of specificity in failing to provide the material facts on
       which each of the counterclaims were based. The order was
       entered without prejudice to [Appellants] to file amended
       counterclaims within twenty (20) days of the Order.
       [Appellants] did not file any amended counterclaim. The
       case was formally assigned to Judge Fizzano Cannon in May
       2015, and the initial scheduling order to the parties placed
       the proceeding on her trial term commencing September 8,
       2015. Green Tree filed a Motion for Summary Judgment on
       July 17, 2015 which was answered on August 27 th by
       [Appellants]. By order dated September 14, 2015, the
       Summary Judgment Motion was denied and trial was
       scheduled for September 29, 2015. The September 14th
       Order further provided that [Appellants] had raised before
       the [c]ourt the issue that Green Tree had failed to respond
       to their new matter. The [c]ourt noted that new matter was
       not stricken in the March 11, 2015 Order and that
       [Appellants were] granted leave to raise at trial objection to
       evidence offered by Green Tree in defense to a pleading that
       remained unanswered.

       The dockets next reflect that four Motions in Limine were
       filed by [Appellants] and Green Tree responded with
       Objections based on untimeliness and in violation of the
       [c]ourt’s scheduling Order. On October 7, 2015, Judge
       Fizzano Cannon entered an Order which granted Green
       Tree’s Oral Motion for Leave of Court to Answer [Appellants’]
       New Matter nunc pro tunc. Both parties were also granted
       leave of [c]ourt to conduct discovery and a date certain for
       trial was established for February 22, 2016. The [c]ourt
       noted in Paragraph Six that the Motions in Limine were
       denied without prejudice to raise any evidentiary issues at
       trial. On December 30, 2015, [Appellants] filed a Motion to
       Deem the Request for Admissions Admitted or Motion to
       Compel Sufficient Responses. Green Tree filed a Motion for
       Summary Judgment and [Appellants] also filed a Motion for
       Partial Summary Judgment on January 5, 2016. After
       argument, Judge Fizzano Cannon on April 8, 2016 denied

                                    -3-
J-S07018-20


       each party’s Motion for Summary Judgment. On April 13,
       2016, the [c]ourt granted in part and denied in part
       [Appellants’] Motion to Compel and instructed Green Tree to
       file sufficient answers within twenty (20) days of the Court
       Order.

       Green Tree, on April 27, 2016, filed a Petition for an Order
       of Corrected Foreclosure Notice. [Appellants] had raised a
       challenge to the notices attached to the Complaint because,
       although the document properly identified the parties and
       the default amount, the notice referenced a property at a
       different address. On August 23, 2016, Judge Fizzano
       Cannon granted Green Tree leave of [c]ourt to serve a
       corrected foreclosure notice and instructed Green Tree to
       file an amended complaint thereafter. The order also
       provided that upon receipt of the amended complaint, the
       [c]ourt would issue a revised Scheduling Order.
       [Appellants] filed, on September 13, 2006, a Motion for an
       Entry of an Order pursuant to Rule 237.1 (i.e. non-
       prosecution) which Green Tree timely answered. Judge
       Fizzano Cannon conducted argument and on October 24,
       2016 denied [Appellants’] Motion. The amended complaint
       was filed on March 13, 2017. [Appellants] filed Preliminary
       Objections on April 3, 2017.          Judge Fizzano Cannon
       overruled the Preliminary Objections on April 27, 2017.
       [Appellants], on June 26, 2017, filed an Answer with New
       Matter and Counterclaim to the Complaint. [Appellants]
       pleaded 442 averments in new matter. [Appellants] also
       included thirteen (13) counts in the counterclaim, which
       mostly mirrored the initial counterclaim but now included a
       claim for violation of loan interest and protection law/usury.
       [Green Tree] filed Preliminary Objections to the New Matter
       and Counterclaim. [Appellants] answered on November 13,
       2017. Judge Fizzano Cannon sustained [Green Tree’s]
       Preliminary Objections and struck the Counterclaims from
       the record. [Green Tree’s] Preliminary Objections to New
       Matter were overruled. [Green Tree] was instructed to
       answer the New Matter and a non-jury trial was placed on
       the [c]ourt’s January 29, 2018 term. Judge Fizzano Cannon
       was elected to the Commonwealth Court of Pennsylvania
       and commenced her position with that [c]ourt on January 1,
       2018. [The Honorable Chad F. Kenney] was assigned Judge
       Fizzano Cannon’s inventory and on February 13, 2018, an
       order was entered that a status hearing would be conducted

                                   -4-
J-S07018-20


          on March 22, 2018 as part of the call of the list. On March
          20, 2018, [Green Tree] filed a Motion for Summary
          Judgment. On May 7, 2018, [Appellants] answered the
          motion. On June 5, 2018,[2] this [c]ourt entered an order
          granting [Green Tree’s] Motion for Summary Judgment and
          entered an in rem judgment against [Appellants] in the
          amount of $229,610.38.

(Trial Court Opinion, filed August 24, 2018, at 1-5) (internal citations

omitted). Appellants timely filed a notice of appeal on July 6, 2018. The court

ordered Appellants on July 10, 2018, to file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellants filed their

Rule 1925(b) statement on July 30, 2018.

       On March 27, 2019, Green Tree filed a notice of bankruptcy, and on April

4, 2019, this Court stayed the appeal. Green Tree filed an application to lift

the stay on November 22, 2019. The application also noted that Appellant

Crawford, who was representing himself and Appellant Kerns, is now

deceased. On January 7, 2020, this Court entered an order indicating the

appeal could be listed on the next available panel and requesting Appellant

Kerns to file a response indicating whether she had retained new counsel.

New counsel entered his appearance on behalf of Appellant Kerns on January

17, 2020, and this Court entered an order lifting the stay on the same day.3



____________________________________________


2 The certified docket entries confirm that Pa.R.C.P. 236 notice was not sent
to the parties until June 6, 2018.

3Appellant Kerns did not respond to this Court’s inquiry regarding whether a
personal representative of Appellant Crawford would be substituted as a party.

                                           -5-
J-S07018-20


      Appellants raise the following issues for our review:

         WHETHER THE COURT COMMITTED REVERSIBLE ERROR
         AND/OR ABUSED ITS DISCRETION GIVEN THAT THE
         COURT: (1) APPEARS TO HAVE NOT READ [APPELLANTS’]
         FIFTY PAGE RESPONSE IN OPPOSITION TO [GREEN TREE’S]
         THIRD MOTION FOR SUMMARY JUDGMENT; (2) FAILED TO
         ADDRESS ANY OF THE MULTIPLICITY OF VALID DEFENSES
         RAISED BY [APPELLANTS] ON SUMMARY JUDGMENT; (3)
         DELVED INTO THE REALM OF THE TRIER OF FACT BY
         (LITERALLY) WEIGHING EVIDENCE AND ERRONEOUSLY
         OVERLOOKING EXHIBITS PLACED ON THE RECORD; (4)
         VIOLATED THE COORDINATE JURISDICTION RULE; (5)
         LACKED JURISDICTION DUE TO THE FAILURE OF [GREEN
         TREE] TO JOIN INDISPENSABLE PARTIES; (6) DID NOT
         HOLD ANY FORM OF HEARING WITH RESPECT TO THE
         SUMMARY JUDGMENT; [AND] (7) DEPRIVED [APPELLANTS]
         OF A RIGHT TO TRIAL[.]

         WHETHER EARLIER DECISIONS OF THE COURT WERE
         LIKEWISE REVERSIBLE ERROR AND/OR ABUSE OF
         DISCRETION INCLUDING THE: [(1)] DISMISSAL OF
         [APPELLANTS’] COUNTERCLAIMS FILED PURSUANT TO
         PA.R.C.P. 1148; [(2)] FAILURE TO RULE UPON THE PRIOR
         FILED   MOTIONS      IN   LIMINE;  [(3)] DENIAL   OF
         [APPELLANTS’] SEPTEMBER 13, 2016 MOTION FOR NON-
         PROSECUTION; [(4)] GRANTING OF [GREEN TREE’S] ORAL
         MOTION TO REOPEN THE PLEADINGS AND FILE A REPLY TO
         NEW MATTER (ON THE DAY OF THE FIRST SCHEDULED
         TRIAL IN 2015); [(5)] FAILURE TO CONDUCT AN INQUIRY
         INTO THE CHAIN OF TITLE ONCE THE PRESUMPTION OF
         OWNERSHIP HAD BEEN REBUTTED; [(6)] ALLOWING
         [GREEN TREE] TO EXPAND UPON THE AMENDED
         COMPLAINT, BEYOND WHAT WAS EXPRESSLY AUTHORIZED
         BY ORDER; [(7)] FAILURE TO DISMISS THE ACTION BASED
         ON THE ACT 91 DEFECTS; [AND (8)] ALLOWANCE OF
         [GREEN TREE] TO SPLIT THE NOTE FROM THE SECURITY
         INSTRUMENTS[.]

(Appellants’ Brief at 4-5).

      Our standard of review of an order granting summary judgment requires

us to determine whether the trial court abused its discretion or committed an

                                     -6-
J-S07018-20


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, 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

                                       -7-
J-S07018-20


         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, appellate briefs must conform in all material respects to the

briefing requirements in the Pennsylvania Rules of Appellate Procedure.

Pa.R.A.P. 2101. When an appellant fails to raise or develop her issues on

appeal properly, or where her brief is wholly inadequate to present specific

issues for review, this Court can decline to address the appellant’s claims on

the merits.   Butler v. Illes, 747 A.2d 943 (Pa.Super. 2000).        See also

Lackner v. Glosser, 892 A.2d 21 (Pa.Super. 2006) (explaining arguments

must adhere to rules of appellate procedure and arguments which are not

appropriately developed are waived; arguments not appropriately developed

include those where party has failed to cite authority to support contention);

Estate of Haiko v. McGinley, 799 A.2d 155 (Pa.Super. 2002) (stating

appellant must support each question raised by discussion and analysis of

pertinent authority; absent reasoned discussion of law in appellate brief,

appellant hampers this Court’s review and risks waiver).

      Instantly, Appellants raise two issues on appeal which contain a total of

                                     -8-
J-S07018-20


fifteen subparts.   In their appellate brief, however, Appellants seemingly

address only five of these subparts: subparts four and five of issue one and

subparts one, five, and eight of issue two. Appellants’ failure to develop their

other ten subparts on appeal with cogent argument prevents meaningful

review of their claims and constitutes waiver of those issues. See Butler,

supra.

      With respect to the five arguments Appellants preserved, after a

thorough review of the record, the briefs of the parties, the applicable law,

and the well-reasoned opinion of the Honorable Chad F. Kenney, we conclude

these issues merit no relief. The trial court opinion comprehensively discusses

and properly disposes of those claims. (See Trial Court Opinion, filed August

24, 2018, at 6-13) (finding: court rejected Green Tree’s first two summary

judgment motions because Appellants raised questions regarding authenticity

or status of pleadings; Green Tree’s amended complaint responded

satisfactorily to all prior court inquiry such that no material factual disputes

remained; prior case law has rejected Appellants’ demands for other parties,

such as Fannie Mae, to be joined in this proceeding; Appellants’ counterclaims

were improper because rules of civil procedure limit counterclaims to those

that are part of or incident to creation of mortgage; Pa.R.C.P. 1148 does not

allow defendants of in rem mortgage foreclosure proceeding to pursue action

in personam for money damages via counterclaim; current trial jurist found

no errors in prior jurist’s orders entered between October 17, 2014 and


                                     -9-
J-S07018-20


November 14, 2017; court’s review of record established no error in creation,

recording, assigning, and noticing of mortgage and note; Appellants failed to

establish any legitimate defense). The record supports the court’s decision;

therefore, we see no reason to disturb it. See Chenot, supra. Accordingly,

we affirm.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/20




                                   - 10 -
                                                                        Circulated 02/28/2020 10:56 AM




 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                          CIVIL DIVISION

DITECH FINANCIAL, LLC                            No.: 2014-003867
F/KJA GREEN TREE SERVICING, LLC

v.

STEWART C. CRAWFORD, JR.;
KARYN M. KERNS; and UNITED
STATES OF AMERICA

                                       OPINION

      On June 5, 2018, this Court entered an Order granting the Motion of Plaintiff,

Ditech Financial, LLC f/k/a Green Tree Servicing, LLC ("Ditech") for Summary Judgment

in favor of Ditech and against Defendants, Stewart C. Crawford, Jr. and Karyn M. Kerns

and entering an in-rem judgment in mortgage foreclosure in the amount of

$229,610.38. Crawford and Kerns have timely appealed.

      The initial complaint in this proceeding was filed on April 28, 2014. Plaintiff was

then identified as Green Tree Servicing, LLC ("Green Tree")(Paragraph One of

complaint). Crawford and Kerns executed a mortgage on May 19, 2004, which was

properly recorded in the office of the Recorder of Deeds in Delaware County

(Paragraph Three of complaint). The mortgage identified the lender as America's

Wholesale Lender and identified "MERS" Mortgage Electronic Registration Systems,

Inc., as acting nominee for lender and its successors and assigns and as the mortgagee

under the security agreement (Exhibit A to complaint, Paragraphs C and D). The

borrowers were identified as Stewart C. Crawford, Jr. and Karyn M. Kerns and their

signatures appear on Page 15 of the mortgage (Exhibit A to Complaint). The Complaint

averred that Green Tree was assigned the mortgage on June 12, 2013 from Mortgage

                                             1
Electronic Registration Systems, Inc. as nominee for America's-Wholesale Lender

(Exhibit B to complaint). That assignment was also properly recorded in Delaware

County Recorder of Deeds office (Paragraph Three of Complaint). The Complaint

averred that only Stewart C. Crawford, Jr. executed the note on May 19, 2004 in the

original   trioc.\�o.., amount of $180,000.00 (Paragraph   Four of Complaint and Exhibit C).

The Complaint averred that interest, accumulated late charges, escrow, costs of suit

and attorney's fees had been incurred since the default (Paragraph Seven of

Complaint). Finally, the Complaint averred that proper notice of intention to foreclose

("Act 6 Notice") 41 P .S. §403 and notice of homeowner's emergency mortgage

assistance ("Act 91 Notice") 35 P.S. §1680.403(c) had been forwarded to Crawford and

Kerns.

         Crawford and Kerns filed a series of Preliminary Objections in response to the

Complaint. Defendant, Stewart C. Crawford, Jr. was admitted on May 22, 2006 to the

Bar of the Commonwealth of Pennsylvania. On June 16, 2014, he filed, on behalf of

Karyn M. Kerns, now known as Karen M. Crawford, Preliminary Objections. On July 9,

2014, Crawford filed Preliminary Objections on his own behalf, and then on July 17,

2014 he filed amended/supplemental Preliminary Objections on behalf of Kerns. Green

Tree answered the Preliminary Objections on July 7, 2014, and answered the amended

Preliminary Objections on September 15, 2014. The Honorable Christine Fizzano

Cannon, former Judge of the Court of Common Pleas of Delaware County, entered an

order overruling the Preliminary Objections on October 16, 2014. Crawford then filed an

Answer to the Complaint with New Matter and Counterclaim on November 7, 2014.

Crawford asserted 103 averments in new matter, and pied twelve (12) counts in his

                                               2
counterclaim which included a Dragonetti claim, breach of contract, breach of good faith

and fair dealing, consumer trade violations, recording law violations, criminal law

violations, collection practice law violations, RESPA violations, misrepresentation/fraud,

unjust enrichment, "RICOH", corruption and negligence.

       Green Tree responded through the Preliminary Objections. On March 11, 2015,

Judge Fizzano Cannon sustained the Preliminary Objections and struck all counter-

claims due to lack of specificity in failing to provide the material facts on which each of

the counterclaims were based. The order was entered without prejudice to Crawford to

file amended counter-claims within twenty (20) days of the Order. Crawford did not file

any amended counter-claim. The case was formally assigned to Judge Fizzano Cannon

in May, 2015 and the initial scheduling order to the parties placed the proceeding on her

trial term commencing September 8, 2015. Green Tree filed a Motion for Summary

Judgment on July 17, 2015 which was answered on August 271h by Crawford. By order

dated September 14, 2015, the Summary Judgment Motion was denied and trial was

scheduled for September 29, 2015. The September 14th Order further provided that

Crawford had raised before the Court the issue that Green Tree had failed to respond to

their new matter. The Court noted that new matter was not stricken in the March 11,

2015 Order and that Crawford was granted leave to raise at trial objection to evidence

offered by Green Tree in defense to a pleading that remained unanswered.

        The dockets next reflect that four Motions in Umine were filed by Crawford and

Green Tree responded with Objections based on untimeliness and in violation of the

Court's scheduling Order. On October 7, 2015, Judge Fizzano Cannon entered an

Order which granted Green Tree's Oral Motion for Leave of Court to Answer Crawford

                                              3
and Kerns' New Matter nunc pro tune. Both parties were also granted leave of Court to

conduct discovery and a date certain for trial was established for February 22, 2016.

The Court noted in Paragraph Six that the Motions in Limine were denied without

prejudice to raise any evidentiary issues at trial. On December 30, 2015, Crawford filed

a Motion to Deem the Request for Admissions Admitted or Motion to Compel Sufficient

Responses. Green Tree filed a Motion for Summary Judgment and Crawford also filed

a Motion for Partial Summary Judgment on January 5, 2016. After argument, Judge

Fizzano Cannon on April 8, 2016 denied each party's Motion for Summary Judgment.

On April 13, 2016, the Court granted in part and denied in part Crawford and Kerns'

Motion to Compel and instructed Green Tree to file sufficient answers within twenty (20)

days of the Court Order.

       Green Tree, on April 27, 2016, filed a Petition for an Order of Corrected

Foreclosure Notice. Crawford had raised a challenge to the notices attached to the

Complaint because, although the document properly identified the parties and the

default amount, the notice referenced a property at a different address. On August 23,

2016, Judge Fizzano Cannon granted Green Tree leave of Court to serve a corrected

foreclosure notice and instructed Green Tree to file an amended complaint thereafter.

The order also provided that upon receipt of the amended complaint, the Court would

issue a revised Scheduling Order. Crawford filed, on September 13, 2006, a Motion for

an Entry of an Order pursuant to Rule 237 .1 (i.e. non-prosecution) which Green Tree

timely answered. Judge Fizzano Cannon conducted argument and on October 24, 2016

denied Crawford's Motion. The amended complaint was filed on March 13, 2017.

Crawford and Kerns filed Preliminary Objections on April 3, 2017. Judge Fizzano

                                             4
Cannon overruled the Preliminary Objections on April 27, 2017. Crawford and Kerns, on

June 26, 2017, filed an Answer with New Matter and Counter-Claim to the Complaint.

Crawford pleaded 442 averments in new matter. Crawford also included thirteen (13)

counts in the counter-claim, which mostly mirrored the initial counter-claim but now

included a claim for violation of loan interest and protection law/usury. Ditech filed

Preliminary Objections to the New Matter and Counterclaim. Crawford and Kerns

answered on November 13, 2017. Judge Fizzano Cannon sustained Ditech's

Preliminary Objections and struck the Counterclaims from the record. Ditech's

Preliminary Objections to New Matter were overruled. Ditech was instructed to answer

the New Matter and a non-jury trial was placed on the Court's January 29, 2018 term.

Judge Fizzano Cannon was elected to the Commonwealth Court of Pennsylvania and

commenced her position with that Court on January 1, 2018. The author of this Opinion

was assigned Judge Fizzano Cannon's inventory and on February 13, 2018 an order

was entered that a status hearing would be conducted on March 22, 2018 as part of the

call of the list. On March 20, 2018, Ditech filed a Motion for Summary Judgment. On

May 7, 2018, Crawford and Kerns answered the motion. On June 5, 2018, this Court

entered an order granting Ditech's Motion for Summary Judgment and entered an in-

rem judgment against Crawford and Kerns in the amount of $229,610.38.

       Crawford and Kerns have filed a statement of errors complained on appeal

pursuant to Pa. R.A.P. No. 1925(b), which contained eight enumerated paragraphs but

detail thirty-eight errors by the trial court. Crawford and Kerns complained that this

Court failed to read their fifty page response to Ditech's third Motion for Summary

Judgment; that this Court overlooked the multiplicity of exhibits placed into the record in

                                              5
their prior Summary Judgment briefing responses; that the Court failed to hold a hearing

before ruling on the Motion for Summary Judgment; that Crawford and Kerns were

deprived of a right to trial; that the Court violated the coordinate jurisdiction rule by

overturning the prior decisions of Judge Fizzano Cannon, who had twice denied

Summary Judgment and that the Court lacked jurisdiction due to Green Tree's failure to

join indispensable parties. Finally, Crawford and Kerns allege that this Court erred in

failing to address any of the issues raised in their new matter and complain of all orders

entered by Judge Fizzano Cannon.

       Initially, this Court notes that it did review the entire voluminous record before

entering its order of June 5, 2018. Ditech, in great detail, averred in 162 paragraphs, the

creation of the mortgage, the location of the premises securitized, the identification of

the mortgagee and note holder, the identification of the mortgagors, their payment

history and the default notices required by statute. Crawford and Kerns' response in

opposition contained general averments which failed to specifically admit or deny the

occurrence of certain transactions and/or notices to Crawford and Kerns. This Court

reviewed the Amended Complaint and the Answer and New Matter to the Amended

Complaint. This Court also reviewed, in detail, the citations by Crawford and Kerns in

their response referencing exhibits contained in their prior pleadings in this proceeding.

       A trial court may grant summary judgment:

       [O]nly in those cases where the record clearly demonstrates that there is
       no genuine issue of material fact and that the moving party is entitled to
       judgment as a matter of law. When considering a motion for summary
       judgment, the trial court must take all facts of record and reasonable
        inferences therefrom in a light most favorable to the non-moving party. In
       so doing, the trial court must resolve all doubts as to the existence of a
       genuine issue of material fact against the moving party, and, thus, may
                                             6
         only grant summary judgment where the right to such judgment is clear
         and free from all doubt.

Summer v. Certainteed Corp., 997 A.2d 1152, 1159, 606 Pa. 294 (2010) (internal

quotations and citations omitted). "A material fact 'is one that directly affects the

outcome of the case.' Fortney v. Callenberger, 801 A.2d 594, 597 (Pa.Super.2002).

Disputed facts which are not critical to the issue in the petition will not preclude

summary judgment." Bartlett v. Bradford Publishing, Inc., BBS A.2d 562, 568 (Pa.

Super. 2005). For Crawford and Kerns to have successfully defended against this

Motion for Summary Judgment, they would have had to establish "one or more issues of

fact arising from evidence in the record controverting the evidence cited in support of

the motion or from a challenge to the credibility of one or more witnesses testifying in

support of the motion." CitiMortgage, Inc. v. Barbezat, 131 A.3d 65, 69-70 (Pa. Super.

2016).

         Initially, this Court notes that no material factual dispute exists in this proceeding

that Crawford and Kerns have failed to make any mortgage payments since April 1,

2013. Crawford and Kerns do not protest such factual finding in their statement of

matters complained. Crawford and Kerns missed 45 mortgage payments between April

1, 2013 and December 1, 2016 which totaled $87 ,589.23. Crawford and Kerns did not

elect to pursue any loan modification or any other adjustment offered through the Act 91

notice. Furthermore, Crawford and Kerns failed to offer any evidence that would

controvert the evidence cited in support of this Motion and did not offer any challenges

to the credibility of the affidavits procured by Green Tree in support of this Motion. As




                                                7
detailed hereinafter, Crawford and Kerns' repeated attempts to establish disputed facts

not critical to an in rem proceeding were misfounded.

       The record clearly establishes that on March 21, 2013 Green Tree sent a notice

to Crawford and Kerns at their home secured by the mortgage informing them that

servicing of the mortgage was being transferred from Bank of America to Green Tree

effective April 1, 2013. The correspondence further provided that the change in

servicing does not affect any terms of the mortgage and contained an address to mail

the payments (Exhibit 1 (e) to Ditech's Motion for Summary Judgment). Crawford had

prior to that time been making timely payments pursuant to an automatic withdraw from

his bank account by Bank of America. This initial correspondence from Green Tree

notified the Crawford and Kerns that the automatic withdraw payment plan had been

cancelled as part of the transfer of servicing. The depositions of Crawford and Kerns

(Exhibits 4 and 8) establish that Crawford was no longer living together in the property

in March, 2013 and that he rarely picked up his mail. Crawford and Kerns had been

married in 2002 shortly after they purchased 615 Edmonds Avenue, Drexel Hill,

Delaware County, Pennsylvania, which is the property subject to the mortgage. A copy

of the original deed dated September 6, 2002 and the original purchase money

mortgage are attached to the Ditech Motion for Summary Judgment (Exhibits 2 and 3).

The subject loan was sought in April, 2004 in order to obtain a lower monthly payment

and to make repairs to the roof.

       In the Preliminary Objections, Answers, New Matter and Counterclaims and in

the responses to the motions for Summary Judgment, Crawford and Kerns have

challenged every aspect of this litigation from the settlement on the re-finance of the

                                             8
mortgage in 2004, through the corrected Act 91 notice mailed to their attention on

December 9, 2016.

      Crawford and Kerns have challenged the validity of the mortgage and note

executed at their 2004 refinance. Both Crawford and Kerns admit their valid signatures

are on the documents but question the propriety of the notary and the handwritten

insertion of Kerns name as borrower on the mortgage instrument. Crawford and Kerns

question the differences in certain photo copies of the note and mortgage which have

been presented into the record. The note attached as Exhibit C to the original complaint

had several areas marked "redacted" and failed to include the blank endorsement

executed by Countrywide Home Loans, a New York Corporation doing business as

American Wholesale Lender. The note attached as Exhibit A to the Amended Complaint

inserted the redacted information and included the blank endorsement. The mortgage

attached to the original complaint as Exhibit A was also marked redacted in areas which

are removed in Exhibit B to the amended complaint. Karyn M. Kerns admitted her valid

signature exists on the mortgage but Crawford questioned the appearance of her hand

written name in the borrower section on page one of the mortgage. Karyn M. Kerns'

name is also hand written under her signature. Crawford questions the identification of

MERS and America's Wholesale Lender Corporation as the lender and mortgagee in

the original note. Crawford challenges the assignment by MERS to Green Tree

Servicing, LLC. Crawford questions the ability of Ditech to proceed on behalf of Green

Tree in the Amended Complaint. Crawford also challenges the Act 91 notices, the

transfer of the servicing rights on the mortgage, the assignment of the mortgage, and

the absence of Fannie Mae from this litigation.

                                             9
       Initially, this Court's review of the pleadings, record and Court orders entered by

Judge Christine Fizzano Cannon between October 17, 2014 to November 14, 2017

establish no error in Judge Fizzano Cannon's orders. This Court can discern no

prejudice to Crawford and Kerns in granting Green Tree leave to amend New Matter,

while at the same time, allowing the parties to proceed to Discovery, which had not

been conducted prior to the initial trial listing in September, 2015. Moreover, granting

Green Tree the right to send a corrected foreclosure notice in August, 2016 did not

prejudice Crawford and Kerns because they remained in possession of the premises

without payment for the same. Crawford challenges this Court's propriety in granting

Summary Judgment after the Court had denied Summary Judgment on two prior

occasions. This Court's review of the record details intense Court oversight of the

pleadings and rejection of the first two Summary Judgment Motions because of

questions raised by Crawford as to document authenticity or the status of the pleadings.

The Amended Complaint by Ditech responded appropriately to all prior Court inquiry.

       This Court's review of the Crawford and Kerns depositions and the deposition of

Stephanie Cejas, a foreclosure mediation specialist and corporate designee on behalf of

Green Tree Servicing conducted by Crawford established no error in the creation,

recording, assigning, noticing and defaulting on the mortgage and note.

       Proceedings in mortgage foreclosure in the Commonwealth of Pennsylvania are

governed by Pa. R.C.P. Nos. 1141 through 1150. Rule No. 1147 requires a Plaintiff to

set forth in the Complaint: 1.) The parties to and the date of the mortgage, and any

assignments, and the statement of the place of record of the mortgage and

assignments; 2.) A description of the land subject to the mortgage; 3.) The names,

                                             10
addresses and interests of the Defendants in the action and that the present real owner

is unknown if the real owner is not made a party; 4.) A specific averment of default; 5.)

An itemized statement of the amount due; 6.) A demand for judgment for the amount

due. Rule No. 1148 authorizes a Defendant to plead a counterclaim which arises from

the same transaction or occurrence or series of transactions or occurrences from which

the plaintiff's cause of action arose.

       In this proceeding, Ditech has established each of the requirements detailed in

Rule No. 1147 to be awarded judgment in its favor. Ditech is proceeding in a limited in-

rem mortgage foreclosure proceeding and Crawford and Kerns have not established a

proper defense. Nicholas v. Hoffman. 158 A.3d 675 (Pa. Super. 2017), Chrysler First

Bus. Credit Corp. v. Gourniak. 601 A.2d ?:ilS(Pa. Super. 1992), Cunningham v

McWilliams, 714 A.2d 1054 (Pa. Super 1998). Ditech has established possession of the

original note endorsed in blank and remains in possession of the note. Bank of America,

N.A. v. Gibson, 102 A.3d 462 (Pa. Super. 2014). The description of the premises and

the identification of the parties are established in the record. The affidavit of Stewart

Derrick, a corporate litigation representative with Ditech Financial, LLC established

possession of the note, proper corporate identification and the default in payment.

(Exhibit A to Ditech's Motion for Summary Judgment). Crawford and Kerns do not

challenge the default in payments. Crawford's counter-claims are improper because the

rules limit the same to those being a part of, or incident to, in the creation of the

mortgage itself. Mellon Bank, N.A. v. Joseph. 406 A.2d 1055 (Pa. Super. 1979). Pa.

R.C.P. No. 1148 does not allow a defendant in a counterclaim to an in-rem mortgage

foreclosure proceeding to pursue an action in personam for money damages. New York

                                              11
Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951 (Pa. Super.1987). Crawford and

Kerns purchased the real estate on September 6, 2002. The original mortgage securing

the real estate on behalf of Weichert Financial Services contained the same MERS

designee as mortgagee as did the refinanced mortgage presented herein in 2004

(Exhibit 2 and 3 to Ditech Motion for Summary Judgment). The May 19, 2004 settlement

sheet, after refinance, shows the satisfaction of the Weichert mortgage through a payoff

to Homecomings Financial (Exhibit 14 to Ditech Motion for Summary Judgment).

         Crawford's challenges to MERS were rejected in Bank of America v. Gibson, \t)2.

A, 3d, �{pt (Pa. Super. 2014). Crawford's demand for Fannie Mae to be joined in this

proceeding was rejected in PHH Mortg. Corp. v. Powell, 100 A.3d 611 (Pa. Super.

2014).

         Defendant Crawford was afforded a period of almost four years from

commencement of this litigation through entry of Summary Judgment to identify any

error by Ditech in this proceeding and the record before this Court fails to establish any

proper defense.

         This Court can ascertain no deprivation to Crawford of his right to trial in this

proceeding. On the contrary, the Court has afforded to him every opportunity to

address, reinstate or to resolve his admitted default of payment to Ditech. Only limited

factual issues are presented to a Court in an in-rem proceeding. Defendants' repeated

attempts to interject arguments which may be appropriate in other forums are improper.




                                                12
For the reascas above, this Opinion is written in support of the orders of Judge Fizzano

Cannon and this Court.


                                                 BY THE COURT:




                                            13
