J-A34013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BANK OF AMERICA, N.A.                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

PAUL S. GALANTI AND GRACE D.
GALANTI A/K/A GRACE P. GALANTI

APPEAL OF: GRACE D. GALANTI                          No. 1021 MDA 2015


                     Appeal from the Order June 1, 2015
                In the Court of Common Pleas of Berks County
                        Civil Division at No(s): 13-2571


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                           FILED MARCH 01, 2016

      Appellant, Grace D. Galanti, appeals from the order entered June 1,

2015, in the Court of Common Pleas of Berks County, which granted

summary judgment in favor of Appellee, Bank of America, N.A (“the Bank”).

No relief is due.

      We take the facts of this matter from the trial court’s Rule 1925(a)

opinion filed July 27, 2015.

            On September 10, 2004, Julie Chapman, agent under
      power of attorney for Paul [S. Galanti (“Mr. Galanti”)], executed
      a note for $333,700.00. Also on September 10, 2004, Ms.
      Chapman, as agent for [Mr. Galanti] and also as agent for [the
      Appellant], executed a purchase money Mortgage on the
      property at 3197 West Philadelphia Avenue, Oley, PA 19547.
      The Mortgage is recorded in the Office of the Recorder of Deeds
      in Book 4156, Page 466. A copy of [the] Power of Attorney to
      Buy/Mortgage, executed on August 30, 2004, is recorded in the
      Office of the Recorder of Deeds at Volume 4156, Page 459 and is
      attached as an exhibit to several of Bank’s filings in this action.
J-A34013-15


           The February 25, 2013 Complaint alleged that [Appellant
     and Mr. Galanti] defaulted under the Mortgage for failing to
     make payments due December 1, 2010 and each month
     thereafter. The complaint also set forth the amount due on the
     mortgage with a breakdown for principal balance, interest, late
     charges, property inspections, title costs, and escrow deficits.
     Although Act 6 does not apply to this action due to the mortgage
     amount[] exceeding the dollar amount set in the statute, the
     [Bank] alleged service of the Act 6 and Act 91 notices. The
     Complaint was served on the [Appellant and Mr. Galanti] on
     February 28, 2013.

           On March 20, 2013, [Mr. Galanti] filed Preliminary
     Objections arguing that the doctrine of “in custodial legis”
     warranted dismissal of the Complaint because of the [couple’s]
     impending divorce action. On April 9, 2013, [the] Bank filed an
     answer citing case law that a matrimonial court has no authority
     to interfere with a mortgage foreclosure action and that the
     divorce proceedings did not bar the foreclosure action. After
     argument on May 30, 2013, the [c]ourt stayed this action and
     scheduled a hearing for October 21, 2013 for determination of
     whether the stay should be lifted despite pendency of the
     equitable distribution matter. Following this hearing, the [c]ourt
     ordered that the stay remain in place until January 6, 2014. As
     of January 6, 2014, the stay was lifted, and [the] Bank was
     authorized to proceed with the foreclosure action, effectively
     dismissing [Mr. Galanti’s] preliminary objection because
     equitable distribution in the divorce was still pending.

           On January 14, 2014, [Appellant] filed an Answer and New
     Matter containing affirmative defenses to the Complaint.
     [Appellant] alleged that [Mr. Galanti’s] “attorney-in-fact” signed
     the Note on his behalf alone. She further averred that this agent
     also signed the Mortgage as her agent “—a claim that has no
     basis within the record and cannot be sustained, Bank of
     America, N.A. cannot produce any document evidencing
     [Appellant’s] assent to either the mortgage or note, or to anyone
     serving as her ‘attorney-in-fact’ or ‘agent.’” Answer, paragraph
     3. [Appellant] averred the mortgage was invalid and therefore
     could not be in default. She also listed a series of legal doctrines
     and conclusions of law, without factual support, as affirmative
     defenses.

         Contemporaneously with the Answer, [Appellant] also filed
     a Motion for Judgment on the Pleadings. [Appellant] again

                                    -2-
J-A34013-15


     argued that the Note was executed by [Mr. Galanti’s] agent on
     his behalf alone and that the Bank “cannot produce any
     document evidencing [her] assent to either the mortgage or
     note, or to anyone serving as her ‘attorney-in-fact’ or ‘agent’
     who would have been authorized to assent on her behalf.”
     Motion, paragraph 6. The Motion again listed unsupported
     conclusions of law as affirmative defenses to the action.
     Argument on the Motion was scheduled for March 19, 2014.

           On February 24, 2014, [the] Bank filed its Response to
     [Appellant’s] Motion for Judgment on the Pleadings. [The] Bank
     argued that the pleadings were not yet closed because it was not
     served with [Appellant’s] Answer Containing New Matter and
     Affirmative Defenses and it intended to file a reply thereto.
     [The] Bank also responded that [Appellant] had executed a
     power of attorney in the State of Washington, which is recorded
     in the Office of the Recorder of Deeds and designates Julie
     Chapman as her agent to purchase, mortgage, or otherwise
     acquire real property. A copy of the power of attorney was
     attached to the Response.

           On March 4, 2014, [the] Bank filed its Reply to New Matter
     and Affirmative Defenses. [The] Bank noted the Mortgage is
     recorded in the Office of the Recorder of Deeds, as is
     [Appellant’s] Power of Attorney to Buy/Mortgage, copies of which
     were attached to the Reply. The Reply further averred the Note
     is not relevant to this cause of action because [the] Bank is
     pursuing only an in rem action against the property, and not
     suing [Appellant and Mr. Galanti] personally for a money
     judgment. [The] Bank also denied the affirmative defenses as
     conclusions of law and further responded that its Complaint fully
     complies with the requirements for a foreclosure complaint as
     set forth in Pa.R.C.P. 1147.

           On March 19, 2014, the [c]ourt denied [Appellant’s]
     Motion for Judgment on the Pleadings. On December 8, 2014, a
     default judgment was entered against [Mr. Galanti].

            On February 26, 2015, [the] Bank filed its Motion for
     Summary Judgment against [Appellant], supporting brief, and
     certificate of service. [The] Bank alleged that no material issues
     of fact were in dispute and that [Appellant], in her answer to the
     Complaint, effectively admitted all of the allegations in the
     Complaint. [The] Bank urged that [Appellant’s] New Matter
     consisted of conclusions of law unsupported by facts. [The] Bank


                                   -3-
J-A34013-15


     argued that the law requires the non-moving party to set forth
     specific facts demonstrating a genuine issue for trial in order to
     survive summary judgment, and [Appellant] had not done so.

           [Appellant] filed her Answer in Opposition to Motion for
     Summary Judgment on March 26, 2015. She averred that [the]
     Bank had not complied with all requirements to proceed to
     foreclosure, that she was entitled to rescission, that [the] Bank
     is estopped or barred by laches from proceeding, and that [the]
     Bank discharged further obligation under the Mortgage. She
     continued to argue that [the] Bank could not produce anything
     evidencing her assent to the Mortgage, causing the Mortgage to
     be invalid and therefore incapable of being in default. She
     argued the Note was not due and payable in full until October 1,
     2034. She argued that [the] Bank should have pursued [Mr.
     Galanti] for any default under the Note, especially since he was
     negotiating the release and acquisition of other loans and looting
     the marital estate. [Appellant] further averred that [the] Bank
     would not communicate with her because she was not party to
     the Note, and she had no idea what [Mr. Galanti] paid against
     the loan. Absent from her argument was any allegation that she
     attempted to any discovery or otherwise attempted to compel
     communication and information sharing.

            [Appellant] attached an Affidavit to her Answer to
     Summary Judgment. She stated that she did not sign the Note
     or Mortgage and that she relied on [Mr. Galanti] to honor his
     obligations under the Note. She averred attempts to
     communicate with [the] Bank, who refused to discuss the
     Mortgage or any assistance to which she might have been
     entitled … because she was not on the Note. She averred that
     [Mr. Galanti] was enjoying the benefits of other loans and
     business dealings, which [the] Bank could and should have
     attached. She also averred that $50,000 of the initial purchase
     monies for the property came from her father.

            The first ten pages of [Appellant’s] brief in opposition to
     summary judgment portrayed a story about the [couple’s]
     relationship and [Mr. Galanti’s] business dealings and divorce
     planning. She argued that all prerequisites for foreclosure have
     not been met and that notices were set only to [Mr. Galanti].
     She believed that [Mr. Galanti’s] business loans, income, and
     valuations had an impact on [the] Banks’ rights and duties with
     respect to the Note and Mortgage. She argued that she
     justifiably relied on [the] Bank to hold [Mr. Galanti] to his

                                   -4-
J-A34013-15


     obligations under the Note and because [the] Bank did not
     properly pursue [Mr. Galanti] for his failure to meet his
     obligations, [the] Bank is barred by estoppel and laches from
     foreclosing on her surety interest. She further argued that [the]
     Bank’s inaction de facto nullified the Note and discharged the
     Mortgage. Finally, she argued that summary judgment would be
     inappropriate while the equitable distribution issue of the parties’
     divorce remained pending.

           On May 6, 2015, [the] Bank filed a praecipe for argument
     with a requested argument date of June 1, 2015.

           On May 11, 2015, [Appellant] filed a supplemental brief in
     opposition to summary judgment. In addition to previous
     arguments, [Appellant] believed that a recent Third Circuit
     opinion, Kaymark v. Bank of America, N.A.; Udren Law
     Offices, P.C., 783 F.3d 168 (3d Cir., April 7, 2015), was
     applicable and relevant. She argued that fair debt collection laws
     required dismissal of the Complaint because fees not yet earned
     and costs not yet or improperly incurred were requested in the
     Complaint….

            On May 28, 2015, [the] Bank filed its Supplemental Brief
     in Support of its Motion. [The] Bank argued that the [couple’s]
     divorce is not a defense to foreclosure, and [Appellant] is not
     entitled to rescission. [The] Bank further argued that the Note is
     not relevant to an in rem foreclosure action and that Kaymark
     did not apply because [the] Bank did not seek to recover any
     unearned fees.

            After argument on June 1, 2015, the [c]ourt entered an
     order granting summary judgment. On June 9, 2015, [Appellant]
     filed a Notice of Appeal. After being ordered to do so, [Appellant]
     filed a Concise Statement of Matters Complained of on Appeal….

Trial Court Opinion, 7/27/15 at 1-6.

     Appellant raises the following issues for our review.

     A. Did Appellant present evidence that BOA had an affirmative
        duty to pursue Mr. Galanti to pay his debt?

     B. Did Appellant present evidence that BOA’s inexcusable delay
        in pursuing remedy under the Note renders Laches
        applicable?


                                       -5-
J-A34013-15


      C. Is Appellant a “mere surity” [sic] and, thus, entitled to
         Rescission?

      D. Did Appellant “affirmatively set forth specific facts that
         demonstrate that [BOA] has listed in its Complaint fees or
         costs that it has not earned or accrued.”

Appellant’s Brief at 3.

      We review a challenge to the entry of summary judgment as follows.

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not merely
      rely on his pleadings or answers in order to survive summary
      judgment. Failure of a non-moving party to adduce sufficient
      evidence on an issue essential to his case and on which he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Lastly, we will review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted).

      In actions for in rem foreclosure due to the defendant’s failure to pay a

debt, summary judgment is proper where the defendant admits that he had

failed to make payments due and fails to sustain a cognizable defense to the

plaintiff’s claim. See Gateway Towers Condo. Ass’n v. Krohn, 845 A.2d

855, 858 (Pa. Super. 2004); First Wis. Trust. Co. v. Strausser, 653 A.2d

688, 694 (Pa. Super. 1995).

                                     -6-
J-A34013-15



       We have reviewed Appellant’s issues raised on appeal, along with the

briefs of the parties, the certified record, and the applicable law. Having

determined that the Honorable Linda K.M. Ludgate’s July 27, 2015 opinion

ably and comprehensively disposes of the issues raised on appeal, with

appropriate reference to the record and without legal error, we will affirm on

the basis of that opinion. See Trial Court Opinion, 7/27/15 at 6-14 (finding,

inter alia: 1) Appellant failed to cite a provision of the Mortgage or the Note,

or any other communication by the Bank, in support of her claim that the

Bank was obliged to pursue Mr. Galanti personally to pay his debt and not

exercise its rights under the Mortgage; 2) Appellant’s failure to allege

inexcusable delay was fatal to a laches defense; 3) Appellant did not have

the right to rescind the Mortgage more than eight years after the execution

of the Mortgage and after the filing of the Complaint; and 4) the Third

Circuit’s decision in Kaymark was inapplicable to the instant mortgage

foreclosure case.1


____________________________________________


1
  In Kaymark, the mortgagor initiated a class action against the mortgagee
and the law firm that initiated the foreclosure proceedings. The Mortgagor
alleged that the foreclosure Complaint listed certain not-yet-incurred fees as
due and owing in violation of, inter alia, the Fair Debt Collection Practices Act
(FDCPA) and the Pennsylvania Fair Credit Extension Uniformity Act (FCEUA).
Kaymark, 783 F.3d at 171-172. Appellant’s reliance upon the Kaymark
decision is entirely misplaced, as that decision provides no defense to a
mortgage foreclosure action. We additionally note, as does the trial court,
that Appellant fails to allege with any particularity which fees listed in the
foreclosure complaint she is contesting.



                                           -7-
J-A34013-15



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016




                          -8-
                                                                                 Circulated 02/10/2016 09:49 AM




BANK OF AlvIERICA, N.A.,                            : IN THE COURT OF COlWlVION PLEAS
                Plaintiff                             BERKS COUNTY, PENNSYLVANIA
                                                      CIVIL ACTION
              v.                                                                                                . .,.,...
                                                      No.      13-2571                               I"'"-..)   ::.,'.,
                                                                                                                Ll
PAULS. GALAt'-rTI and GR.I\CE D.                                                     ~c;)
                                                                                     ,..~r·1
                                                                                                     -~

                                                                                                     ,..n
                                                                                                                :r:
GALANTI A!KIA GRACE P. GALAi~TI,                                                      }2;:,J
                                                                               l ~J }~ ::,.:
                                                                                                     L..
                                                                                                     ~-:::::    ,;.1 ;::J
                                                                                                     I" ••      ·!'.-r,q
                       Defendants·                    LUDGATE, S.J.            .'. ::;-: U)
                                                                                                                ':~>f"11
                                                                                                                  .:;n
                                                                               ·-,- .r:c,
                                                                               ~· ~~ r-11 c':J
                                                                                      _oc:..,..
                                                                                                     _,
                                                                                                     N
                                                                                                                ;1)-
Chrisovalante P. Fliakos/Matthew G. Brushwood, Attorneys for Plaintiff                      ..                   -<<
Joseph A. O'Keefe, Attorney for Defendant Grace Galanti                        }/{3;                 'o          <Arq
                                                                                                                00
Eleni Dimitriou Geishauser, Attorney for Defendant Paul S. Galanti             ..... . . -·••'.)     ~          "'1
                                                                                         C:> ].::·              "Y1
                                                                                      ·~             w
                                                                                                                ()
                                                                                                     ..0        n,
OPINION                               LUDGATE, S.J.                         Dated:               .Julv27, 2015

        On February 25, 2013, Bank of America, N.A. (hereinafter "Bank") filed a Complaint in

Mortgage Foreclosure against Defendants, Paul and Grace Galanti. Judgment by default was

entered against Defendant Paul Galanti (hereinafter "Paul").   Following entry of summary

judgment against Defendant Grace Galanti (hereinafter "Grace"), she filed an appeal.' This

Opinion is written in support of the Court> sentry of summary judgment

FACTUAL A.ND PROCEDURAL HISTORY

        On September 10, 2004, Julie Chapman, agent under power of attorney for Paul,

executed a Note for $333,700.00.     Also on September 10, 2004, Ms. Chapman, as agent for Paul

and also as agent for Grace, executed a purchase money Mortgage on the property at 3197 West

Philadelphia Avenue, Oley, PA 19547 to secure the Note. The Mortgage is recorded in the

Office of the Recorder of Deeds in Book 4156~ Page 466. A copyof Grace's Power of Attorney

to Buy/Mortgage, executed on August 30, 2004, is recorded in the Office of the Recorder of

Deeds at Volume 4156, Page 459 and is attached as an exhibit to several of Bank' s filings in this
 action.

           The February 25, 2013 Complaint alleged that Defendants defaulted under the Mortgage

 by failing to make payments due December l 1 2010 and each month thereafter. The Complaint

alsoset forth the amount due on the mortgage with a breakdown for principal balance, interest,

late charges, property inspections, title costs, and escrow deficits. Although Act 6 does not apply

to this action due to the mortgage amount's exceeding the dollar amount set in the statute, the

Plaintiff alleged service of the Act 6 and Act 91 notices. The Complaint was served on the

Defendants on February 28, 2013.

           On March 20, 2013, Paul filed Preliminary Objections arguing that the doctrine of "in

custodial legis" warranted dismissal of the Complaint because    of the Defendants'   pending

divorce action. On April 9, 2013, 'Plaintiff filed an answer citing case law that a matrimonial

court has no authority to interfere with a mortgage foreclosure action and that the divorce

proceedings did not bar the foreclosure action. After argument on May 30, 2013, the Court

stayed this action and scheduled a hearing for October 21, 2013 for determination of whether the

stay should be lifted despite pendency of the equitable distribution matter. Following this

hearing, the Court ordered that the stay remain in place until January 6, 2014. As of January 6,

2014, the stay was lifted, and Bank was authorized to proceed with the foreclosure action,

effectively dismissing Paul's preliminary objection because equitable distribution in the divorce

was still pending.

           On January 14, 2014, Grace filed an Answer and New Matter containing affirmative

defenses to the Complaint. Grace alleged that Paul's "attorney-in-fact" signed the Note on his

behalf alone. She further averred that this agent also signed the Mortgage as her agent "._ a claim

that has no basis within the record and cannot be sustained, Bank of America, N.A. cannot




                                                  2
 produce any document evidencing Grace Galanti 's assent to either the mortgage or note, or to

 anyone serving as her 'attorney-in-fact' or 'agent.?' Answer, paragraph 3. Grace averred the

 mortgage was invalid and therefore could not be in default. She also listed a series of legal

 doctrines and conclusions of law, without factual support, as affirmative defenses.

        Contemporaneously with the Answer, Grace also filed a Motion for Judgment on the

Pleadings. Grace again argued that the Note was executed by Paul's agent on his behalf alone

and that the Bank "cannot produce any document evidencing [her] assent to either the mortgage

or note; or to anyone serving as her ' attorney-in-fact' or 'agent' who would have been authorized

to assent on her behalf." Motion, paragraph 6. The Motion again listed unsupported conclusions

of law as affirmative defenses to the action. Argument on the Motion was scheduled for March

19, 2014.

        On February 24, 2014, Bank filed its Response to Grace's Motion for Judgment on the

Pleadings.   Ba11k argued that the pleadings were not yet closed because it was not served with

Grace's Answer Containing New Matter and Affirmative Defenses and it intended to file a reply

thereto. Bank also responded that Grace executed a power of attorney in the State of

Washington, which is recorded in the Office of the Recorder of Deeds and designates Julie

Chapman as her agent to purchase, mortgage, or otherwise acquire real property. A copy of the

power of attorney was attached to the Response.

       On March 4, 2014, Bank filed its Reply to New Marter arid Affirmative Defenses . Bank

noted the Mortgage is recorded in the Office of the Recorder of Deeds, as is Grace's Power of

Attorney to Buy/Mortgage, copies of which were attached to the Reply. The Reply further

averred the Note is not relevant to this action because Bank is pursing only an in rem action

against the property and not suing the Defendants personally for a money judgment. Bank also




                                                  3
 denied the affirmative defenses as conclusions of law and further responded that its Complaint

 fully complies with the requirements for a foreclosure complaint as set forth in Pa.R.C.P. 1147.

        On March 19, 2014, the Court denied Grace's Motion for Judgment on the Pleadings.

        On December 8, 2014, a default judgment was entered against Paul.

        On February 26, 2015, Bank filed its Motion for Summary Judgment against Grace,

supporting brief, and certificate of service. Bank alleged that no material issues of fact were in

dispute and that Grace, in her answer to the Complaint, effectively admitted all of the allegations.

in the Complaint. Bank argued that Grace's New Matter consisted of conclusions of law

unsupported by facts. Bank argued that the law requires the non-moving party to set forth

specific facts demonstrating a genuine issue for trial in order to survive summary judgment, and

Grace had not done so.

        Grace filed her Answer in Opposition to Motion for Summary Judgment on March 26,

2015. She averred that Bank had not complied with all requirements to proceed to foreclosure,

that she was entitled to rescission, that Bank is estopped or barred by laches from proceeding,

and that Bank discharged further obligation under the Mortgage. She continued to argue that

l~ank could not produce anything evidencing her assent to the Mortgage, causing the Mortgage

to be invalid and therefore incapable of being in default. She argued the Note was not due and

payable in full until October 1, 2034. She argued that Bank should have pursued Paul for any

default under the Note, especially since he was negotiating the release and acquisition of other

loans and looting the marital estate. Grace further averred that Bank would not communicate

with her because she was not party to the Note, and she had no idea what Paul paid against the

loan. Absent from her argument was any allegation that she attempted any discovery or

otherwise attempted to compel communication and information sharing.




                                                 4
        Grace attached an Affidavit to her Answer to Summary Judgment. She stated that she did

 not sign the Note or Mortgage and that she relied on Paul to honor his obligations under the

Note. She averred attempts to communicate with Bank, who refused to discuss the Mortgage or

any assistance to which she might have been entitled with her because she was not on the Note.

She averred that Paul was enjoying the benefits of other loans and business dealings) which Bank

could and should have attached. She also averred that $50,000 of the initial purchase monies for

the property came from her father.

        The first ten pages of Grace's brief in opposition to summary judgment portrayed a story

about the Defendants) relationship and Paul's business dealings and divorce planning. She

argued that all prerequisites for foreclosure have not been met and that notices were sent only to

Paul. She believed Bank did not properly service the mortgage. She argued that she is entitled

to rescission. She believed that Paul's business loans, income, and valuations had an impact on

Bank's rights and duties with respect to the Note and Mortgage. She argued that she justifiably

relied on Bank to hold Paul to his obligations under the Note and because Bank did not properly

pursue Paul for his failure to meet his obligations, Bank is barred by estoppel and laches from

foreclosing on her surety interest. She further argued that the Bank' s.inaction de facto nullified

the Note and discharged the Mortgage. Finally, she argued that summary judgment would be

inappropriate while the equitable distribution issue of the parties' divorce remained pending.

       On May 6, 2015, Bank filed a praecipe for argument with a requested argument date of

June 1, 2015.

       On May 11, 2015, Grace filed a supplemental brief in opposition to summary judgment.

In addition to previous arguments, Grace believed that a recent Third Circuit opinion, Kaymark

v. Bank of America, N.A.; Udren Law Offices, P.C., 783 F.3d 168 (3rd Cir., April 7, 2015),




                                                  5
 was applicable and relevant. She argued that fair debt collection laws required the dismissal of

 the Complaint because fees not yet earned and costs not yet or improperly incurred were

 requested in the Complaint. She argued that because the Bank has not done equity, it cannot ask

 for equity.

         O.n May 28, 2015, Bank filed its Supplemental Brief in Support of its Motion. Bank

argued that the Defendants' divorce is not a defense to foreclosure, and Grace is not entitled to

rescission. Bank further argued that the Note is not relevant to an in remforeclosure action and

that Kaymark does not apply because Bank did not seek to recover any unearned fees.

        After argument on June 1, 2015, the Court entered an order granting summary judgment.

On June 9, 2015, Grace filed a Notice of Appeal. After being ordered to do so, Grace filed a

Concise Statement of Matters Complained of on Appeal, wherein she argues that the Court

"ignored, failed to address, or consider binding precedent" or her New Matter and Affirmative

Defenses, which are repeated in the Concise Statement.

LEGAL ANALYSIS

               Summary judgment serves the purpose of promoting judicial economy by

eliminating cases prior to trial if a party cannot make out a claim or defense. See Miller v.

Sacred Heart Hosp., 753 A.2d 829 (Pa.Super. 2000). Summary judgment is appropriate when

the record shows there is no genuine issue as to any material fact and the moving party is entitled

to judgment as a matter of law. Hovis v. Sunoco, Inc., 64 A.3d 1078, 1081 (Pa.Super. 2013)

( citation omitted). The moving party bears the burden of clearly demonstrating that there are no
                                                                                        \

genuine issues of material fact. Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 154 (Pa. 2009)

( citations omitted). The nonmoving party may not rest upon the pleadings but must

affirmatively set forth specific facts that demonstrate a genuine issue for trial. Pa.R.C.P. 1035.3




                                                 6
Furthermore, averments in a pleading to which a response is required are deemed admitted if not

denied specifically or by necessary implication, Pa.R.C.P. 1029(b). A general denial is

effectively an admission for purposes of summary judgment, Ld.

        Complaint states a clahn for which relief can be granted

        Pursuant to Pa.R.C.P. 1147 a mortgage foreclosure complaint must set forth the parties

to and the date of the mortgage; a description of the mortgaged land; the names, addresses, and

interest of the defendants; a specific averment of default; an itemization of the amounts due; and

a demand for judgment for the amount due. Bank's Complaint meets all of these requirements -

it establishes the Defendants' creation of a mortgage of their property in favor of Bank, states a

default under the mortgage by the Defendants' failure to make monthly payments due December

1, 201 0 and thereafter, states the damages, and makes a claim for relief in the form of an in rem

judgment of foreclosure. Incidentally, there is no requirement in Rule 1147 to make any

allegation about or to produce the promissory note that the mortgage secures,

       Grace's assent to the Mortgage

       Grace's argument that there are no indicia of her assent to the Mortgage is incredible.

She executed a power of attorney that specifically authorized the transaction:

       I, Grace D. Galanti, (principal) duly constitute and appoint Julie Chapman my
       true Agent for me in my name, place and stead, to enter into and take possession
       of all lands, messuages, tenements, hereditaments and real estate whatever, for the
       following limited purpose:
       To purchase the same or any part thereof, for such sum or price and upon such
       terms as he/she feels appropriate.
       To make, execute, acknowledge and deliver any documents, deeds, mortgages or
       instruments necessary or appropriate in the sole discretion of my Agent, in
       connection with the sale or mortgage of3 l 97 W. Philadelphia Ave., Oley PA
       19547.
                                               ***
       By this Power of Attorney I hereby give and grant my Agent, my full and
       complete authority to act with respect to said transaction as I might do myself if
       personally present and to do all lawful acts requisite for effectuating the said



                                                 7
        purchase or mortgage; and Therebvratify       an.cl confl:rmalltbatmy   Agent.shall do
        thereirt bv virh1e of these presents;

 Power of Attorney to Buy/Mortgage, August 30, 2004, recorded as aforesaid (emphasis added).

This Power of Attorney has been referenced by and attached to several of Bank' s filings, but at

no time did Grace allege ti-mt the Power of Attorney was invalid or revoked prior to the agent's

execution of the Mortgage. Instead, Grace has disingenuously argued that she did not sign the

Mortgage or Note.

        Estoppel

        "The essential elements of estoppel are 'an inducement by the party sought to be

estopped to the party who asserts the estoppel to believe certain facts to exist -- and theparty

asserting the estoppel acts in reliance on that belief?" Westinghouse Elec. Corp.!CBS v.

W. C.A.B. (Korac!t), 584 .Pa. 411, 422, 883 A.2d 579, 586 (2005), quoting Blofsen v. Cutaiar,

460 Pa. 411,333 A.2d 841, 844 (1975) (emphasis in original).

        Grace argued that, as a surety, she «absolutely relied upon Bank . . . to hold Paul ... to

his obligations nuder the Note." Grace's brief opposing summary judgment, p. 23. She seems to

think that Bank had an obligation to pursue him for monies he "looted" from the Defendants'
                                                                                I


marital estate. Nowhere did she cite a provision of the Mortgage or the Note that Bank had an

affirmative duty to pursue Paul personally to pay his debt, which would have required the filing

of a separate civil action, rather than pursue foreclosure. Nowhere did Grace cite a specific

communication or action that Bank induced her to reasonably believe that Bank would pursue

Paul personally and not exercise its rights under the Mortgage. The Bank's concern was that it

received the payments that it was due, and, failing such payments, mortgage foreclosure

provided a direct and typically efficient means of enforcing payment. Finally, there was no

alleged inaction by Bank that could have reasonably caused Grace to reasonably believe that the



                                                  8
 ongoing default was forgiven. See below discussion on laches. Grace has not affirmatively

 produced any facts that show that she was induced in any way by Bank to believe that Bank

 would not pursue foreclosure.

        Lach es

        "Laches arises when a defendant's position or rights are so prejudiced by length of time

and inexcusabl e delay, plus attendant facts and circumstances, that it would be an injustice to

permit presently the assertion of a claim against him." Jacobs v. Halloran, 551 Pa. 350, 356,

710 A.2d 1098, 1102 (1998) (citations omitted, emphasis in original).

        Grace does not allege inexcusable delay. Furthermore, pursuant to 42 Pa.C.S;A, § 5529,

(''an action upon an instrument in writing under seal must be commenced within 20 years"),

Bank had 20 years from December 1, 2010 to commence this action because the Mortgage was

executed under seal. Lastly, the prejudice that Grace alleged was the result of Bank's perceived

failure to prosecute Paul personally, not the passage of time and delay. 'The doctrine of laches

does not apply to this action.

        Rizht of Rescission

        ,l[I]n the case of any consumer credit, .. in which a security interest ... is or will be

retained or acquired in any property which is used as the principal dwelling of the person to

whom credit is extended, the obliger shall have the right to rescind the transaction until midnight

of the third business day following the consummation of the transaction or the delivery of the

information and rescission forms required under this section together with a statement containing

the material disclosures required under this subchapter, whichever is later," 15 U.S. C.A. §

1635(a); however, this section does not apply to a residential mortgage transaction. 15 U.S.C.A.

§ 1635(e). Even when 15 U.S.C.A. § 1635 applies to a transaction, the tight of rescission expires




                                                  9
 three years after the consummation of the transaction even if required information, forms, and

 disclosures have not been provided to the obliger. 15 tJ.S,C.A. § 1635(f).

        By the terms of§ 1635, Grace did not have the ability to rescind the Mortgage, certainly

not after the filing of the Complaint, which came more than eight years after execution of the

Mortgage, nor did she allege an attempt to rescind the Mortgage. Bank's foreclosure action is

not barred by 15 U.S.C.A. § 1635. Grace did not specifically allege or argue any other statutory

right of rescission.

        In arguing that the Mortgage is properly rescinded under comrnon.Iaw, Grace's brief

cited First Federal Sav. and Loan Ass'n of Pittston v. Reggie, 376 Pa.Super. 346, 546 A.2d 62

(1988) as a case in which a surety was discharged because of a lender's improper subordination

of liens and impairment of the collateral. In Reggie, the defendants pledged their home as

collateral so that their son and daughter-in-law would qualify for a mortgage to buy a home, the

"Spring property." The following year, the defendants placed yet another lien against their home

to help their son and daughter-in-law buy and borrow against another property, the "Luzerne

property." Thereafter, the son and daughter-in-law refinanced the Luzeme property mortgage

into their names only and used the Spring property as additional collateral, removing the

defendants' latest lien against their home. The lender foreclosed on the refinanced mortgage and

bought both of the Luzerne and Spring properties at the sheriffs sale, After selling these

properties, the lender applied the proceeds to the combined indebtedness of the two properties,

effectively satisfying the Luzerne debt, but causing a deficiency on the Spring property debt and

leaving the defendants exposed on the first lien against the Spring property as also secured by

their home. Because of this deficiency exposure, the defendants gave the lender another

mortgage against their home. The Court determined that the lender should have applied the




                                                10
 Spring property sale proceeds to the first lien against
                                                   .
                                                         the property,
                                                                 .
                                                                       not the second/junior Hen and

 Luzerne property lien. Had the lender applied the Spring property proceeds correctly, the first

 lien, for which the defendants served as sureties, would.have been nearly if not completely

satisfied. The Court found the mortgage that the defendants gave to secure the deficiency was

fraudulently induced and discharged the mortgage.

        In the instant case; Grace alleges that Paul gave Bank a second mortgage against their

home for a commercial purpose and that Bank later discharged this mortgage without any

consideration of the primary mortgage. Grace did not provide a copy of this mortgage or give a

Recorder of Deeds reference to support its existence, validity, or discharge. Grace did not allege

being a party to the loan or second mortgage. She did not even aver that the discharge of this

mortgage was in any way improper except that it did not"consider" the primary mortgage - no

fraud was specifically alleged. See Pa.R.C.P. 1019 (fraud "shall be averred with particularity").

       Viewing the alleged existence of the second mortgage in a light most favorable to Grace,

the Court still does not have evidentiary support that its commercial purpose was not achieved

nor that its discharge was the product of improper loan subordination or other fraudulent activity.

Additionally, the primary mortgage at issue was not a commercial mortgage; therefore, H should

not be expected that commercial proceeds would be used to first satisfy the primary mortgage

and not the secondary mortgage securing the commercial loan. Finally, if Paul had money to

make payments on either of the loans, he would have been the one with control to pay whichever

loan he wanted·- the Bank would not have properly dictated which loan to pay first. To further

expound on this point by following the logic used by the Reggie Court in its footnote 3, had the

second mortgage been secured from another creditor, there would be no argument that discharge

or satisfaction of the second lien by the second creditor somehow impaired the first. On the




                                                 11
 other hand, if a sale of the collateral occurred, then priority ofeach mortgage would be a

 concern, but that is not the scenario here.

         It should also be noted that discharge of the second mortgage inured to Grace's benefit

 because a cloud on her title to the property was removed. It is disingenuous to argue that Grace

 is a "mere surety" when she is a beneficiary of the purchase money note and mortgage that has

 allowed her to purchase and reside in the property securing the debt. There simply were not

 sufficient specific facts affirmatively set forth to raise a genuine issue that the discharge of the

second mortgage somehow affected the validity of the first so as to justify rescission or

discharge.

        Standing

        Aside from the above arguments that the mortgage is invalid or unenforceable, Grace

made no other arguments regarding Bank's standing. As the mortgagee, Bank is a real party in

interest aggrieved by Defendants' failure to pay their debt; therefore, Bank has standing.

        Fair Credit Extension Uniformity Act

        "This act establishes what shall be considered unfair methods of competition and unfair

or deceptive acts or practices with 'regard to the collection of debts." 73 P .S. § 2270.2. Grace

made no arguments about how this act allegedly barred the foreclosure action, nor did the Court

perceive any violations of the act

        Divorce

        Upon the commencement of a divorce action, all marital property is placed under the

jurisdiction and wardship of the family court - the property is in custodia legis. Fidelity Bank v,

Carroll, 416 Pa.Super. 9, 14, 610 A.2d 481, 483 (1992). Such property is not subject to

attachment by judicial liens. Id. "Marital property does not include ... [p [roperty to the extent




                                                   12
to which the property has been mortgaged or otherwise encumbered in good faith for value prior

to the date of final separation." 23 Pa.C.S.A. § 3501(a)(7). "To the extent that a secured

creditor has acquired a bona fide interest in property owned by spouses, a matrimonial court does

not have power to impair the creditor's security." Kronz v. Kronz, 393 Pa.Super. 227, 232, 574

A.2d 91, 94 (1990).

        The Mortgage in this case was executed prior to the Defendants' separation; therefore,

the encumbered property is not marital, is not subject to the jurisdiction and wardship of the

court, and is not protected from attachment by judicial liens. Just as in Kranz, "[tjhe rights of the

mortgagee bank in this real estate were contractual; they did not depend upon a continuing

marriage of the mortgagors or upon the distribution of the real estate between them upon

divorce." Id. at 234, 574 A.2d at 95. Bank's foreclosure action was not barred by the divorce.

        Kaymark

        In Kaymark, 783 .F.3d 168 (3rd Cir., April 7, 2015)1 the mortgagor filed a claim against

the mortgagee and its counsel alleging that the mortgagee's mortgage foreclosure complaint

listed certain fees that had not yet been earned and costs that had not yet been incurred as due

and owing. The Court determined that the mortgagor sufficiently pled an actionable

misrepresentation under the Fair Debt Collection Practices Act.

        In this action, Grace has not affirmatively set forth specific facts that demonstrate that

Bank has listed in its Complaint fees or costs that it has not earned or accrued. Kaymark is not

applicable to this case.

CONCLUSION

        Bank complied with all applicable rules of civil procedure in the filing of its Complaint

and Motion for-Summary Judgment. The Complaint sufficiently identified the parties, the nature




                                                  13
             of the claim, and the calculation of damages. There ls no fatal defect or irregularity in the

             record. Grace did not affirmatively set forth specific facts that demonstrated a genuine issue for

             trial and did not plead a meritorious defense to the allegations contained in the Complaint. The

             Court properly granted summary judgment.

                      For these reasons, the Court suggests that its June 1,2015 Order granting summary

         judgment be affirmed.
                               · o·r-
i\l1)"'tl{)li IIJ Hl!Rtl)Y GI\ILN       1··r 11·'t.:-   """<''"'f'".,
                                                        r',         1
                                                                        OF 'f1n10
                                                                               no
()l~lJ[:F\    on oiwm::E. PUf18UANT TO r1ULE P, C, P · 236
YOci /1ni: NO'i'iFiED THJ-\1 THIS ORDER/DOCUMENT
HAS BEEN FILED IN THE PROTHONOTARY'S OFFICE
OF BEFH(S COUNTY AND THIS IS AN EXTRACT FROM
IH&. Bf;CORD OF SAID s;.·.ouRT CERTIFIED THISI -
 (){t-iH""' OAY OF          _;y~-=---                       20 ,5
r'[,<t't:)_0:\nr1e
                ~. SA.Httoorh
                         t i_~.r.' "'oth.o~.n1clvt).
                                              n .lJ.l'f"l')   ·.
 . . J_\.{L:(.J~'l&....,.la:J.J..LJ£..e~                      Deputy


         Distribution; Prothonotary; Chrisovalante .P. Fliakos, Esq./ Matthew G. Brushwood, Esq.; Joseph A. O'Keefe, Esq.;
         Eleni Dimitriou Geishauser, Esq.


                                                                                                               ~
                                                                                                               ~
                                                                                                               C-
                                                                                                               c::
                                                                                                               r
                                                                                                               !'V
                                                                                                                _.)




                                                                                    14
