J-S03016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DITECH FINANCIAL, LLC F/K/A              :   IN THE SUPERIOR COURT OF
 GREEN TREE SERVICING, LLC                :        PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 JOHN P. MICHAELS AND LAURIE J.           :
 MICHAELS                                 :   No. 1375 EDA 2018
                                          :
                    Appellants            :

                   Appeal from the Order March 13, 2018
  In the Court of Common Pleas of Monroe County Civil Division at No(s):
                             8093 CIVIL 2015


BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

JUDGMENT ORDER BY OLSON, J.:                    FILED FEBRUARY 28, 2019

      Appellants, John P. Michaels and Laurie J. Michaels, appeal from the

order entered on March 13, 2018, granting a motion for summary judgment

filed by Ditech Financial, LLC, f.k.a., Green Tree Servicing, LLC (“Ditech”).

Upon review, we vacate the order and remand for additional proceedings.

      We briefly summarize the facts and procedural history of this case as

follows. On October 27, 2015, Ditech instituted a mortgage foreclosure action

against Appellants regarding a residential property in Monroe, County,

Pennsylvania. After conciliation efforts failed, Appellants filed an answer and

new matter to the complaint on January 20, 2017.            Ditech replied to

Appellants’ new matter on February 1, 2017. On February 6, 2018, Ditech

filed a motion for summary judgment.     Appellants filed a response on March
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9, 2018. On March 13, 2018, the trial court entered an order granting Ditech’s

motion for summary judgment and entering judgment in Ditech’s favor in the

amount of $251,184.30, plus interest, costs, and attorney’s fees.

      Appellants filed a timely notice of appeal on April 12, 2018. The trial

court entered an order on May 21, 2018, stating that it did not receive a copy

of the notice of appeal. In that order, the trial court directed Appellants to file

a concise statement of errors complained of on appeal by June 11, 2018.

Appellants complied timely.     On June 21, 2018, the trial court issued an

opinion pursuant to Pa.R.A.P. 1925(a), which states in pertinent part:

      After review of the issues raised by [Appellants], [the trial court]
      believe[s its] order was entered in error. [The trial court]
      reviewed [Appellants’] response to the [m]otion for [s]ummary
      [j]udgment and their brief in support. [The trial court did not]
      believe [it] was aware that [Appellants] filed these documents at
      the time [it] made [its] decision, perhaps because of a delay in
      docketing and scanning. [The trial court] believe[d its] order was
      in response to what [it] thought was an uncontested motion.

      The complaint in this case states that John Michaels obtained a
      loan from Ditech’s predecessor [i]n November, 2005 in the
      amount of $198,280.00. Mr. Michaels signed the note but Mrs.
      Michaels did not. In addition, both [Appellants] secured the loan
      by signing a mortgage on their property. John Michaels then
      signed a modification of the note and mortgage on July 22, 2014,
      increasing the principal balance to $200,472.00 and modifying the
      interest rate of the note. Laurie Michaels did not sign this loan
      modification agreement.

      [Appellants] defended the motion for summary judgment on the
      grounds that Laurie Michaels did not agree to this modification of
      the mortgage and should not be bound by it. [The trial court
      concluded that] had [it] considered this defense, [it] would have
      denied the motion for summary judgment.

Trial Court Opinion, 6/21/2018, at 1-2 (record citation omitted).

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      Our standard of review is well-settled:

      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. Our scope of review of
      a trial court's order granting or denying summary judgment is
      plenary, and our standard of review is clear: the trial court's order
      will be reversed only where it is established that the court
      committed an error of law or abused its discretion.

Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012) (citation

omitted).

      Here, by its own admission, the trial court inadvertently erred by failing

to consider Appellants’ defense to the motion for summary judgment.           As

such, there were issues of material fact as to Ditech’s right to judgment when

the trial court entered its order granting summary judgment. Accordingly, we

vacate the order and remand for additional proceedings.

      Order vacated. Case remanded for additional proceedings. Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/19




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