J. S15032/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MTGLQ INVESTORS, L.P.                    :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                    v.                   :
                                         :
DEREK F. D’ANGIOLINI AND                 :
DONNA H. D’ANGIOLINI,                    :            No. 2731 EDA 2016
                                         :
                         Appellants      :


                   Appeal from the Order, August 2, 2016
               in the Court of Common Pleas of Bucks County
                       Civil Division at No. 2010-06371


BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED MAY 16, 2017

     Derek     F.   D’Angiolini   and   Donna    H.    D’Angiolini   (collectively,

“appellants”) appeal pro se the August 2, 2016 order of the Court of

Common Pleas of Bucks County that granted the motion for summary

judgment of Ditech Financial, LLC t/d/b/a Green Tree Servicing LLC 1 and

entered a judgment in favor of appellee and against appellants in the


1
  The action was initially filed by the then mortgagee GMAC Mortgage LLC.
Green Tree Servicing LLC (“Green Tree”) was substituted for GMAC Mortgage
on October 29, 2013, as mortgagee on October 29, 2013. On January 15,
2016, Ditech Financial LLC (“Ditech”) was substituted for Green Tree after
Green Tree merged with Ditech and changed its name to Ditech. After
judgment was entered and appellants appealed, MTGLQ Investors, LP
(“appellee”) was substituted as plaintiff and judgment was marked to
appellee’s use on October 6, 2016, as mortgagee under a recorded
assignment. On December 19, 2016, appellee filed an application for
substitution as appellee in this court. This court granted the application by
order dated January 23, 2017.
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amount of $484,517.38 plus interest from February 20, 2016 plus other

costs as provided by law. We affirm.

     The relevant facts, as recounted by the trial court, are as follows:

                 On November 1, 2006, [a]ppellants made,
           executed and delivered a mortgage and promissory
           note to Mortgage Electronic Registration Systems,
           Inc., as nominee for GMAC Mortgage, LLC d/b/a
           DiTech.Com. The mortgage loan was to be repaid on
           a monthly basis. The last monthly payment received
           by [a]ppellee[2] was February of 2010. On June 24,
           2010, [a]ppellee filed a Complaint in Mortgage
           Foreclosure against [a]ppellants for their failure to
           tender timely monthly mortgage payments due
           March 1, 2010 and each month thereafter.

                 Pursuant to [a]ppellants’ enrollment in the
           Bucks County Mortgage Foreclosure Diversion
           Program, a Conciliation Conference was scheduled
           for September 13, 2010. Appellants failed to attend
           this Conference due to claimed illness. A second
           conference was scheduled for January 10, 2011.
           Appellants again did not appear.       In light of
           [a]ppellants’ repeated failure to appear, on
           January 12, 2011, this Court entered an order
           authorizing [a]ppellee to obtain a judgment by
           default pursuant to Pa. R.C.P. 237.1 and to
           otherwise proceed with the action as provided by
           rules of court.

                 On August 4, 2010, [a]ppellant Derek
           D’Angiolini   filed   Preliminary    Objections   to
           [a]ppellee’s Complaint.     On January 28, 2011,
           [a]ppellee filed a Response to [a]ppellant’s
           Preliminary Objections. Appellant Derek D’Angiolini
           filed an Answer on February 25, 2011.         In his
           Answer,     appellant  Derek     D’Angiolini  denied
           paragraphs five and six of the Complaint, which aver
           that the mortgage is in default and the amount due

2
  References to “appellee” in the trial court’s opinion refer to the mortgagee
at the time.


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          on the mortgage.       Appellant demanded proof of
          default and an accounting of payments made toward
          the mortgage, but did not offer an amount
          [a]ppellant believes is the correct balance due.

                 On March 30, 2011, [a]ppellee filed Preliminary
          Objections    to   [a]ppellant  Derek     D’Angiolini’s
          Preliminary Objections to Plaintiff’s Complaint. On
          April 20, 2011, [a]ppellant Derek D’Angiolini filed a
          Motion for Reconsideration and Petition for Stay,
          which requested that this Court reconsider the
          January 12, 2011 Order and provide a 120-day stay
          of execution to enable the parties to enter into an
          agreement under the federal Home Affordable
          Modification Program.

                On May 3, 2011, the Honorable Judge Scott
          denied [a]ppellant’s Petition for Stay.      Appellant
          Derek D’Angiolini appealed the Order to the Superior
          Court of Pennsylvania. On August 11, 2011, the
          Superior Court quashed the appeal. On November 9,
          2011, [a]ppellee filed Preliminary Objections to
          [a]ppellant Derek D’Angiolini’s Preliminary Objections
          to [a]ppellee’s Complaint.

                On    February      15,    2012,    [a]ppellant
          Donna D’Angiolini filed Preliminary Objections to the
          Complaint. On October 12, 2012, this Court entered
          an Order overruling and dismissing [a]ppellant
          Donna D’Angiolini’s Preliminary Objections and
          directed Appellants to file an Answer within twenty
          days.     On November 5, 2012, [a]ppellant
          Donna D’Angiolini appealed the Order to the Superior
          Court and the Superior Court quashed it on
          March 26, 2013.

                On      December     4,   2012,    [a]ppellant
          Donna D’Angiolini filed an Answer. The Answer was
          substantially     the    same     as     [a]ppellant
          Derek D’Angiolini’s Answer, including denials of
          paragraphs five and six of the Complaint. Appellant
          Donna D’Angiolini similarly demanded proof of
          default and an accounting of payments, but did not



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            offer an amount [a]ppellant believes is the correct
            balance due.

                  On January 14, 2016, the [a]ppellee filed a
            praecipe for voluntary substitution of party plaintiff
            pursuant to Pa.R.C.P. 2352 to substitute DiTech
            Financial LLC f/k/a Green Tree Servicing LLC as
            successor plaintiff. On May 2, 2016, [a]ppellee filed
            a Motion for Summary Judgment. On May 31, 2016,
            [a]ppellants filed an Answer to Appellee’s Motion for
            Summary Judgment, New Matter and Motion to
            Dismiss.[3] On July 20, 2016, [a]ppellee filed a Reply
            to [a]ppellants’ New Matter and Motion to Dismiss.

                  On July 31, 2016, this Court entered an order
            granting [a]ppellee’s Motion for Summary Judgment
            and ordering an in rem judgment be entered in
            favor of [a]ppellee and against [a]ppellants for
            $484,517.38 plus ongoing per diem interest, and
            other costs as provided by law. The Appellants then
            filed a notice of appeal to the Superior Court on
            August 18, 2016. On September 8, 2016, this Court
            ordered Appellants to file a concise statement of
            errors.

Trial court opinion, 10/18/16 at 1-3 (citations to record omitted).

      In their brief, appellants failed to include a Statement of Questions

Involved as required by Pa.R.A.P. 2111(a)(4) and Pa.R.A.P. 2116(a).

Pa.R.A.P. 2116(a) provides in pertinent part:

            The statement of the questions involved must state
            concisely the issues to be resolved, expressed in the
            terms and circumstances of the case but without
            unnecessary detail. The statement will be deemed
            to include every subsidiary question fairly comprised

3
  Appellant Derek F. D’Angiolini asserted in the motion to dismiss that Ditech
did not have capacity to sue because it did not hold a mortgage. Ditech
attached copies of the mortgage to its motion for summary of judgment and
attached a certificate of merger to its response to the motion to dismiss that
indicated that Ditech merged with Green Tree.


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             therein. No question will be considered unless it is
             stated in the statement of questions involved or is
             fairly suggested thereby.

Pa.R.AP. 2116(a).

      Although this court has the authority to dismiss claims raised in the

argument section of the brief that are not listed in the statement of

questions involved, this court, in the interest of justice, will address the

arguments that we can reasonably discern.           See Commonwealth v.

Harris,      A.3d      , 2017 WL 499427 (Pa.Super. February 7, 2017).

      In the argument section of their brief, appellants raise the following

two issues for this court’s review: “[1.] Did the Lower Court err in entering

an   Order    for   Summary    Judgment    prior   to   addressing   an   Open

Pleadings [sic]? [2.] Under the Rules of Civil Procedure and Rules of

Appellate Procedure, is the entry of Summary Judgment, a Final Order?”

(Appellants’ brief at 5.)

      This court reviews a grant of summary judgment under the following

well-settled standards:

                    Pennsylvania law provides that summary
                    judgment may be granted only in those
                    cases in which the record clearly shows
                    that no genuine issues of material fact
                    exist and that the moving party is
                    entitled to judgment as a matter of law.
                    The moving party has the burden of
                    proving that no genuine issues of
                    material fact exist.    In determining
                    whether to grant summary judgment,
                    the trial court must view the record in
                    the light most favorable to the non-


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                  moving party and must resolve all doubts
                  as to the existence of a genuine issue of
                  material fact against the moving party.
                  Thus, summary judgment is proper only
                  when the uncontroverted allegations in
                  the pleadings, depositions, answers to
                  interrogatories, admissions of record,
                  and submitted affidavits demonstrate
                  that no genuine issue of material fact
                  exists, and that the moving party is
                  entitled to judgment as a matter of law.
                  In sum, only when the facts are so clear
                  that reasonable minds cannot differ, may
                  a trial court properly enter summary
                  judgment.

                  [O]n appeal from a grant of summary
                  judgment, we must examine the record
                  in a light most favorable to the
                  non-moving party.         With regard to
                  questions of law, an appellate court’s
                  scope of review is plenary. The Superior
                  Court will reverse a grant of summary
                  judgment only if the trial court has
                  committed an error of law or abused its
                  discretion.    Judicial discretion requires
                  action in conformity with law based on
                  the facts and circumstances before the
                  trial    court     after    hearing    and
                  consideration.

            Gutteridge v. A.P. Green Services, Inc., 804 A.2d
            650, 651 (Pa.Super. 2002).

Wright v. Allied Signal, Inc., 963 A.2d 511, 514 (Pa.Super. 2008)

(citation omitted).   Summary judgment in mortgage foreclosure actions is

subject to the same rules as any other civil action. See Pa.R.C.P. 1141(b).

      Initially, appellants argue that the trial court erred when it granted

appellee’s motion for summary judgment without addressing appellants’



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outstanding motions.[4] Appellants refer to a motion to dismiss which they

filed as a response to appellee’s motion for summary judgment.            The

Pennsylvania Rules of Civil Procedure do not recognize a motion to dismiss

as a proper     response   to   a motion for    summary judgment.        See

Pa.R.C.P. 1035.3(b). As a result, the trial court was not required to dispose

of that motion separately. Even if appellants had filed the motion to dismiss

as a separate document, the substance of the motion that Ditech did not

possess the mortgage and was not a proper party had no merit because an

assignment of mortgage recorded on February 1, 2013 which was recorded

in the Recorder of Deeds Office in Bucks County indicated that the mortgage

with the appellants had been assigned to Green Tree. This assignment was

attached to the motion for summary judgment. Further, it is clear from the

record that Ditech was the new name of Green Tree. Additionally, the grant

of the appellee’s motion for summary judgment would moot the motion to

dismiss.

      Appellants next contend that the entry of the order granting summary

judgment was not a final order as contemplated by Pa.R.A.P. 341(b)

because it did not dispose of all claims and of all parties because the motion

to dismiss and the motion to enter judgment of default judgment were still

outstanding.   This court has already determined that the motion was


4
  In addition to the motion to dismiss, appellant Derek F. D’Angiolini moved
to enter judgment of default judgment due to appellee’s failure to timely
respond to the motion to dismiss.


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procedurally improper.     While the trial court could have dismissed the

motions to make the disposition of the case clearer to appellants, the grant

of the summary judgment motion entered judgment against appellants and

in favor of appellee and was a final order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/16/2017




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