J-S51015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RBS CITIZENS, N.A. SUCCESSOR IN                   IN THE SUPERIOR COURT OF
INTEREST TO CCO MORTGAGE                                PENNSYLVANIA
CORPORATION

                            Appellee

                       v.

ERIC BRODIE AND ADINA BRODIE

                            Appellants                No. 3316 EDA 2014


              Appeal from the Judgment Entered October 21, 2014
                In the Court of Common Pleas of Bucks County
                       Civil Division at No(s): 2013-01556


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                    FILED SEPTEMBER 14, 2015

       Appellants, Eric Brodie and Adina Brodie (“the Brodies”), appeal from

the summary judgment entered in the Bucks County Court of Common

Pleas, in favor of Appellee, RBS Citizens, N.A. successor in interest to CCO

Mortgage Corporation (“RBS Citizens”), in this mortgage foreclosure action.

We affirm.

       The trial court opinion fully sets forth the relevant facts and procedural

history of this case. Therefore, we have no reason to restate them.1

____________________________________________


1
  The court granted summary judgment in favor of RBS Citizens by order
dated October 20, 2014, entered on the docket on October 21, 2014, with
notice sent on October 28, 2014. The Brodies timely filed a notice of appeal
(Footnote Continued Next Page)

________________________

*Retired Senior Judge assigned to the Superior Court.
J-S51015-15


      The Brodies raise the following issues for our review:

          DID THE TRIAL COURT COMMIT AN ERROR OF LAW IN ITS
          GRANT OF SUMMARY JUDGMENT WHEN THERE DID NOT
          EXIST A NOTE TRANSFER BY NEGOTIATION THROUGH THE
          CHAIN OF LOAN TITLE IN FAVOR OF [RBS CITIZENS]
          BELOW AND THERE WAS NO ASSIGNMENT OF MORTGAGE
          LIKEWISE?

          DID THE TRIAL COURT COMMIT AN ERROR OF LAW IN
          ADMITTING THE OTHERWISE INADMISSIBLE AFFIDAVIT
          IN SUPPORT OF…[RBS CITIZENS’] MOTION FOR SUMMARY
          JUDGMENT AS WELL AS UPON THAT AFFIDAVIT’S
          LIKEWISE INADMISSIBLE FOUNDATION?

(The Brodies’ Brief at 8).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the comprehensive opinion of the Honorable Albert J.

Cepparulo, we conclude the Brodies’ issues merit no relief. The trial court

opinion discusses and properly disposes of the questions presented.      (See

Trial Court Opinion, filed January 20, 2015, at 6-8; 12-15) (finding: (1) CCO

Mortgage Corporation is original mortgagee and lender; when court granted

summary judgment, 15 Pa.C.S.A. § 1929 was controlling,2 which provided

that, upon merger, surviving or new corporation succeeds to rights and

liabilities of merged corporation; RBS Citizens produced Certificate of Merger

                       _______________________
(Footnote Continued)

on November 20, 2014. On November 25, 2014, the court ordered the
Brodies to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and the Brodies timely complied.
2
  On October 22, 2014, the legislature repealed Section 1929, and re-
codified the statute at 15 Pa.C.S.A. § 336 (effective July 1, 2015).



                                            -2-
J-S51015-15


with official seal by Comptroller of Currency of Treasury Department, signed

September 18, 2007 (effective September 1, 2007); official certification

evidences that CCO merged into RBS Citizens, such that RBS Citizens

assumed all of CCO’s assets and liabilities, including Brodies’ mortgage and

note; thus, RBS Citizens did not have to produce assignment of mortgage,

where merger effectively resulted in RBS Citizens’ assumption of mortgage;

(2) RBS Citizens’ loan history records, obtained in regular course of

business, did not trigger Nanty-Glo3 rule because such evidence is not oral

testimony or dependent upon credibility and demeanor of any witnesses;

additionally, Brodies produced no evidence to refute computation of

damages contained in affidavit by David Salley (officer and litigation

manager of RBS Citizens) or accuracy of RBS Citizens’ loan history records,

except to claim they are “indecipherable”; moreover, Brodies’ general

denials to itemized list of amounts owed constituted admissions in mortgage

foreclosure action).4 Accordingly, we affirm on the basis of the trial court’s

opinion.

       Judgment affirmed.



____________________________________________


3
 Borough of Nanty-Glo v. American Surety Co. of New York, 309 Pa.
236, 163 A. 523 (1932).
4
  The correct citation for LTV Steel Company, Inc. v. W.C.A.B. (Mozena)
is 562 Pa. 205, 754 A.2d 666 (2000).



                                           -3-
J-S51015-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/2015




                          -4-
                                                                                           Circulated 09/03/2015 01:32 PM




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

RBS CITIZENS, N.A., SUCCESSOR IN                           No. 2013-01556
INTEREST TOCCO MORTGAGE CORP.                              3316 EDA 2014

        vs.

ERIC BRODIE AND ADINA BRODIE
                                                               1111
                                                               case#:
                                                                     J:f1Wt1~,III Ill
                                                                        2013.01556   809    10770949

                                                               Code 5214           Judge:30
                                            OPINION            Patricia L. Bachtle, Bucks County Prothonotary
                                                               Rcpt Z1239909 1120/2015 1 :53:56 PM


   I.         INTRODUCTION

         Appellants/Defendants   Eric Brodie and Adina Brodie appeal to the Superior Court of

Pennsylvania from this Court's grant of Appellee/Plaintiff RBS Citizens' Motion for Summary

Judgment. We file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure

(Pa.R.A.P.) 1925(a).

   II.        FACTUAL AND PROCEDURAL BACKGROUND

         On June 19, 2007, Eric Brodie and Adina Brodie ("Defendants") made, executed and

delivered a Mortgage to CCO Mortgage Corp. in the amount of $360,000.00. Complaint at']{ 3,

Exh. A. The Mortgage applied to 41 Carol Lane, Richboro, PA 18954 ("Subject Property") and

was recorded in the Office of the Recorder of Deeds in Bucks County on July 19, 2007 in

Mortgage Book 5465, Page 1194. Compl. at TJ[ 3, 5, Exh. A. Additionally, Defendants executed

a Promissory Note in consideration of the loan on June 19, 2007. Compl. at 'I[ 4, Exh. B.

Plaintiff is the successor in interest to the original Mortgage holder- CCO Mortgage Corp.

Motion for Summary Judgment ("Motion") at']{ 3, Exh. A. Plaintiff attached a Certificate of

Merger which was recorded in the Office of the Comptroller of Currency, United States

Department of Treasury to their Motion. Motion Exh. A. A legal description of the Subject

Property was attached to the complaint. The requisite Notice of Intention to Foreclose and

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    Notice of Homeowners'      Emergency      Assistance   was sent to both Defendants         individually

    pursuant to the Loan Interest and Protection       Law 41 P.S. §§ 101 et seq. ("Act 6") and the

    Homeowner's Emergency Mortgage Assistance Act of 1983, 35 P.S. §§ 1680.401c et seq. ("Act

    91 "). Compl. at 1 10. Exh. C.

           The Complaint alleged that the Mortgage was in default because Defendants failed to

make payments of principal and interest due on April 1, 2012 and any monthly payments

thereafter. Compl. at, 7, Motion for Summary Judgment ("Motion") at 7, Exh. B. Pursuant to

the Complaint, "Plaintiff brings this action to foreclose on the mortgage between Defendants and

itself ... " as "[t]he Mortgage is now in default. .. " Compl. at 113, 7. Therefore, Plaintiff filed a

complaint in mortgage foreclosure seeking $370,328.76 as of March 1, 2013 plus interest.1

Comp I. at 1 7.

           A Sheriff's Return filed on March 19, 2013 indicated that the Bucks County Sheriff

attempted to serve Defendants with Plaintiffs Complaint five (5) separate times and received no

response, left notices, and thereafter found the notices were removed. Therefore, on May 9,

2013 Plaintiff filed a Motion for Alternative Service Pursuant to Pennsylvania Rule of Civil

Procedure 430, which we granted on May 30, 2013. Our Order permitted Plaintiff to serve

Defendants with their complaint by posting the premises and via regular and certified mail to

Defendants' last known address- 41 Carol Lane, Richboro, PA 18954.2 The Complaint was

reinstated on June 13, 2013.

           On August 12, 2013 Defendants filed an Answer and New Matter. It was admitted that

Defendants were the Record Owners of the Subject Property. Answer at 16. However,



1
  The principal balance owed was $339,663.83 with accrued but unpaid interest at $22,736.26 and fees and costs
including accumulated late charges, property inspection fees, appraisal fees, hazard insurance, school tax, cost of
suit, and attorney's fees totaling $7,928.67. See Compl. at 7 for an itemized list offees.
2
  Plaintiff complied with this Order and filed a Certificate of Service on July 5, 2013.

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Defendants denied that they were in default under the terms of the Mortgage, and additionally

alleged that" 'appraisal fees,' 'property inspection' and post-acceleration interest is either not

chargeable and/or not incurred upon information and belief." Ans. at ,r 7. Defendants responded

that both the Mortgage and the Note "speaks for itself in its entirety" and also alleged that this

Court is without jurisdiction "for Plaintiff's non-compliance" in terms of the Act 6/91 Notices.

Ans. at ,r,r 3, 4, 10. Furthermore, in terms of an itemization of amounts due in Paragraph 7 of

Plaintiffs Complaint, Defendants responded that " ... after reasonable investigation, Defendants

are without knowledge or information sufficient to form a belief as to the truth of the averment

and therefore, said averment is expressly denied ... " Ans. at ,r 7.

        In their New Matter, Defendants allege that Plaintiff is without standing, is in violation of

Act 6/91, is "barred by laches, estoppel, and its own unclean hands," and is "barred and/ or

limited by its violations of the Truth-In-Lending Act ("TILA") and Real Estate Settlement

Procedures Act ("RESPN'). New Matter at ,r,r 3, 4, 6, 7. Defendants further claim that

Plaintiffs verification is defective and that Plaintiff is in violation of the Home Affordability

Modification Program ("HAMP") as well as the Unfair Trade Practices and Consumer Protection

Law (''UTPCPL") and "such other and further government (federal or state) programs relevant

herein." New Matter at ,r,r 8, 10, 11. Finally, Defendants assert that this Court is without

jurisdiction. New Matter at ,r 5.

        On August 16, 2013, Plaintiff filed a reply to Defendant's New Matter, responding

"Denied. Defendants' allegations are conclusions of law devoid of any allegations of fact;

therefore, no response is required under the Pennsylvania Rules of Civil Procedure" to each of

Defendant's allegations. Plaintiff's Reply to New Matter at ,r,r 1- I 1.




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         On February 10, 2014 Plaintiff filed a Motion for Summary Judgment ("Motion"). This

Motion was praeciped under Bucks County Rule of Civil Procedure ("B.C.R.C.P.") 208.3(b)

and, thus, submitted for disposition. In its Motion, Plaintiff asserted that "[t]here is no genuine

issue of material fact regarding the Defendants' default." Motion at ,r 12. Attached to this

Motion is the Mortgage and Note, both of which were signed by Defendants on June 19, 2007.

See Motion Exh. A, B. Plaintiff also attached the Certificate of Merger recorded in the Office of

the Comptroller of Currency, United States Department of Treasury, reflecting Plaintiff as the

record holder of both the Mortgage and Note. See Motion Exh. A. Furthermore, a redacted copy

of Defendants' loan history and a letter sent to both Defendants individually notifying them of

their default and of Plaintiffs intent to foreclose are attached. See Motion Exh. B.

        Plaintiff attached an Affidavit to the Motion, authored by David P. Salley, an officer and

litigation manager of RBS Citizens, N.A. Successor in Interest to CCO Mortgage Corp. See

Motion Exh. B. Mr. Salley asserted that, based on his personal knowledge and review of

business records kept in the normal course of business, payments are due and owing and as of

October 22, 2013 the total amount due on the Mortgage was $390,059.55, including interest at

$62.81 per day. Motion Exh. B. The amount owed was itemized and listed with specificity in

his affidavit.

        In terms of Defendants' Answer, Plaintiff asserted that Defendants offered only a general

denial in response to Plaintiffs averment of default and the amount due and owing on the

mortgage, and, therefore, pursuant to relevant Pennsylvania caselaw, such a denial constitutes an

admission in a mortgage foreclosure action. Motion at ,r,r 12, 13.

        Defendants filed a Response in Opposition to Plaintiffs Motion for Summary Judgment

("Response") on March 12, 2014. In this response, Defendants "expressly denied" that



                                           Page 4 of 15
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Defendants ever executed a mortgage or note in favor of Plaintiff. Response at fl 2-3.

Furthermore, in terms of the amount due, Defendants deny that they are liable for "appraisal

fees," "property inspection" and post-acceleration interest. Response at 14. Defendants aver

that Mr. Salley's affidavit constitutes "inadmissible testimonial hearsay predicated upon an

indecipherable 'payment history."? Response at~ 7. Defendants also claim that this court lacks

jurisdiction relating to Plaintiffs "non-compliance" with Act 6/91. Response at 19.

       In Defendants' accompanying Memorandum of Law, Defendants first claim that

"Plaintiff must be the negotiated transferee of the subject note as well as record assignee of the

subject mortgage through the chain of loan title (as evidenced by negotiation/allonge and

assignment of mortgage, respectively)." Defendants argue summary judgment was inappropriate

as the note was still in the name of the original lender and Plaintiff failed to attach an assignment

of mortgage. Furthermore, Defendants aver that Mr. Salley' s affidavit was in violation of the

Nanty-Glo rule.

           On October 20, 2014, upon consideration of the foregoing, we issued an Order granting

summary judgment for Plaintiffs and entering an in rem judgment against Defendant in the

amount of $390,059.55 plus interest in the amount of $62.81 per day from October 23, 2014.

           On November 20, 2014, Defendants filed a Notice of Appeal to the Superior Court.

    III.      MATTERS COMPLAINED OF ON APPEAL

           On November 25, 2014, we Ordered Defendants to file a concise statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b) within twenty-one (21) days. On

December 16, 2014, Defendants filed his l 925(b) statement raising the following claims,

verbatim:




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          1) Whether the trial court erred in granting Plaintiff-Appellee's Motion for Summary
             Judgment per the arguments contrary thereto in Defendants-Appellants' response in
             opposition?

          2) Whether the trial court erred in finding Plaintiff was the pre-judgment record assigned
             mortgagee and recipient of the negotiated transferred note through the chain of loan
             title such as to allow summary judgment?

          3) Whether the trial court erred in finding Plaintiff has standing/authority to allow
             summary judgment?
          4) Whether the trial court erred in precluding requested discovery, oral argument, and
             evidentiary hearing?

          5) Whether the trial court erred in admitting otherwise objected to as inadmissible
               claimed "evidence"?

    IV.        ANALYSIS

          The Superior Court's standard of review of a court's grant of summary judgment is well-

established:

          [S]ummary judgment is appropriate only 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 only
          grant summary judgment "where the right to such judgment is clear and free from
          all doubt.

          On appellate review, then, an appellate court may reverse a grant
          of summary judgment if there has been an error of law or an abuse of discretion.
          But the issue as to whether there are no genuine issues as to any material fact
          presents    a question        of law,    and   therefore,  on that     question
          our standard of review is de novo. This means we need not defer to the
          determinations made by the lower tribunals. To the extent that this Court must
          resolve a question of law, we shall review the grant of summary judgment in the
          context of the entire record.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010).

   1) The Court Correctly Granted Summary Judgment in Favor of Plaintiff




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         In regard to Defendants' first claim, the arguments made in Defendants' Response in

Opposition to Plaintiffs Motion for Summary Judgment are three-fold as set forth above and can

be summarized as follows: (1) Plaintiff is not the record holder of the Mortgage and. Note and

failed to attach or reference an Assignment of Mortgage and (2) the affidavit was in violation of

the Nanty-Glo rule, and (3) the merger documents constitute inadmissible hearsay. Because all

of these averments are wholly contained in Defendants' issues 2)- 5), we will address them

below.

   2) Plaintiffwas the Pre-JudgmentRecordAssigned Mortgagee and Recipient of the
      Negotiated TransferredNote

         Defendant claims that this court erred in finding Plaintiff was the record assigned

mortgagee and recipient of the Note. There is no dispute that Plaintiff did not produce or

reference an Assignment of Mortgage. Additionally, we recognize that the CCO Mortgage Corp.

is the original Mortgagee and Lender. However, at the time summary judgment was granted in

this case, Title 15 ("Corporations and Unincorporated Associations") Pa. C.S.A. § 1929 ("Effect

of merger or consolidation") was controlling. Therefore, the effect of a merger or consolidation

is as follows:

                  All the property, real, personal and mixed, and franchises of each of the
         corporations parties to the merger or consolidation, and all debts due on whatever
         account to any of them ... shall be deemed to be vested in and shall belong to the
         surviving or new corporation, as the case may be, without further action, and the
         title to any real estate, or any interest therein, vested in any of the corporations
         shall not revert or be in any way impaired by reason of the merger or
         consolidation. The surviving or new corporation shall thenceforth be responsible
         for all the liabilities of each of the corporations so merged or consolidated.




                                             Page 7 of 15
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15 Pa.C.S.A.    § 1929(b).3 Accord LTV Steel Co., Inc. v. W.C.A.B. (Mozena). 754 A.2d 666. 677

(Pa. 2013) (holding "It is well established law in the Commonwealth that when corporations

merge the surviving corporation succeeds to both the rights and liabilities of the constituent

corporation"). Here, Plaintiff attached a Certificate of Merger that was signed and bore an

official seal by the Comptroller of the Currency with the Treasury Department to the Motion for

Summary Judgment. Motion Exh. A. This Certificate was signed on September 18, 20074 and

indicated that the merger was effective as of September 1, 2007. This official certification

evidences that CCO Mortgage Corp. of Glen Allen, VA (among other distinct corporations) was

merged into Citizens Bank, National Association "with the title RBS Citizens, National

Association." Motion Exh. A. Therefore, in granting summary judgment, we determined that

based on the language of the relevant statute in addition to the directives of caselaw, the merger

resulted in RBS Citizens, N.A.' s assumption of all CCO Mortgage Corp.' s assets and liabilities,

including the Mortgage and Note at issue here. As a result, an Assignment of Mortgage was

unnecessary, as the merger effectively resulted in Plaintiffs assumption of the Mortgage.

Furthermore, Defendants failed to present evidence to the contrary, and simply rested on their

general statements that Plaintiff was not the record holder of the Mortgage and Note.

    3) The Trial Court had Jurisdiction to Adjudicate the Instant Litigation

        Next, Defendants claim the trial court erred in "finding Plaintiff had standing/authority to

allow summary judgment." We are uncertain and it is unclear as to whether Defendants are

challenging our jurisdiction to entertain this particular lawsuit generally or Plaintiff's lack of




3
  We are aware that as of October 22, 2014 (two (2) days after our grant of SummaryJudgment) the General
Assembly repealed 15 Pa.C.S.A. 1929 in total. See 2014 Pa. Legis. Serv. Act2014- 172 (H.B. 2234).
4 Defendants' executed the Mortgage and Note on June 19, 2007.


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standing to bring the lawsuit for reasons set forth above.5 Regardless, in terms of the latter, we

have previously established that Plaintiff was the successor in interest to CCO Mortgage Corp.

and, therefore, at the time summary judgment was granted Plaintiff was the holder of the

Mortgage and Note. In addressing the former, we note that our jurisdiction to entertain the

instant action is pursuant to Pennsylvania Rule of Civil Procedure ("Pa.R.C.P.") 1142, which

states that a mortgage foreclosure action "may be brought in and only in a county in which the

land or a part of the land is located." There is no dispute that the Subject Property is located in

Bucks County, PA.

        Furthermore, in Defendants' Response to Plaintiffs Motion, Defendants claimed that this

court lacked jurisdiction "relating to Plaintiffs 'non-compliance'              with Act 6/91.

Response at ,r 9. This issue of whether the Act 91 notice requirements impose jurisdictional

prerequisites has been previously adjudicated and decided by our Supreme Court in Beneficial

Consumer Discount Co. v. Vukman, 77 A.3d 547 (Pa. 2013). In this case, mortgagee filed a

complaint in mortgage foreclosure against mortgagor, which resulted in a settlement agreement

in which mortgagee received judgment for the accelerated amount due on the mortgage,

however, agreed not to execute on the judgment so long as mortgagor continued making regular

payments. Beneficial, 77 A.3d at 548. Thereafter, mortgagor defaulted on her obligations

pursuant to the settlement agreement and mortgagee filed a praecipe for writ of execution and the

property was sold thereafter. Id. Mortgagor then filed a "Motion to Set Aside Judgment and


5 Based on the foregoing and despite our efforts to address Defendants' claim, we are of the opinion that it is waived
as vague pursuant to relevant law. Where a petitioner's Concise Statement pursuant to Pa.R.A.P. l 925(b) is not
specific enough for a trial court to identify and address the issue the petitioner wishes to raise on appeal, the trial
court may find waiver. Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006). When a court must guess what
issues are being appealed, petitioner has not presented enough for meaningful review. Id. When a petitioner fails to
identify the issues he pursues on appeal, the court is impeded in its preparation of a legal analysis pertinent to those
issues. Id. "In other words, a Concise Statement which is too vague to allow the court to identify the issues raised
on appeal is the functional equivalent ofno Concise Statement at all." Id. (citing Lineberger v. Wyeth, 894 A.2d
141, 148 (Pa. Super. 2006)).

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Sheriffs Sale" on the basis that the Act 91 Notice was deficient because it failed to inform

mortgagor of an option available to her as of 2006. Id. The trial court found the notice was

deficient as a result and concluding "this stripped it of subject matter jurisdiction, which cannot

be waived." Id. Mortgagee filed a timely notice of appeal, raising the issue that "even if the

notice was deficient, this fact did not extinguish the trial court's subject matter jurisdiction over

[the] case." Id. at 549. The court reasoned and concluded as follows:

         The failure to pay the mortgage according to its terms gave [mortgagee] its cause
         of action. To act on that cause of action, it was required to give notice under Act
         91. As the notice it gave did not meet the requirements of the Act, it was
         defective and the procedural requirements for enforcement were not met; that
         defect, however, did not affect the jurisdiction of the court to hear the matter.

Id. at 553. Here, we determined that Plaintiff provided adequate Act 6/91 Notice to Defendants

                                                                        6
regarding notice of default and their intention to foreclose.               See Compl. Exh. C, Motion Exh. B.

Regardless, any failure to provide such notice in no way affects our jurisdiction to hear this

matter and, even so, Defendants do not point to any specific defect or omission in the combined

notice and, therefore, this claim is meritless.

    4) The Court Correctly Precluded Discovery, Oral Argument, and Evidentiary
       Hearings

         Defendants question whether this Court's grant of summary judgment was an abuse of

discretion and/or error as a matter oflaw because they did not have an opportunity to engage in

further discovery. However, in their Memorandum of Law in support of their Response in

Opposition to Plaintiffs Motion for Summary Judgment, Defendants "demanded" the deposition

of Plaintiffs affiant. First, it is important to note that the Complaint in Mortgage Foreclosure

was first filed on March 5, 2013 and Defendants had been in default under the terms of the

6
  Although the Notices sent to Defendants individually by Plaintiff are entitled "Act 91 Notice," the dictates of Act
91 (specifically 35 P.S. § 1680.403c(b)(l)) provide that a mortgagee shall prepare a notice pursuant to all of the
information required by the statute in addition to that required by Act 6 (41 P.S. § 403). All of the information
required by both Act 6 and Act 91 are contained therein. See Comp!. Exh. C; Motion Exh. B.

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Mortgage and Note since April 1, 2012. Defendants filed their Answer and New Matter on

August 12, 2013. This Motion was not praeciped for our disposal until April 7, 2014 and we did

not receive it for review until May 6, 2014. It was not until October 20, 2014 that we granted

Plaintiffs Motion for Summary Judgment. Defendants were afforded ample time and

opportunity to conduct discovery to negate Plaintiffs assertions or support any defenses to the

allegations. There is no evidence that Defendants attempted to depose Plaintiffs "affiant," as the

record as it stands before us is devoid of any notice of intention to take such an oral deposition.

Moreover, summary judgment may be granted "whenever there is no genuine issue of material

fact as to a necessary element of the cause of action or defense which could be established by

additional discovery .... " Pa.R.C.P. 1035.2. Thus, discovery does not need to be completed in

order for this Court to rule on Motions for Summary Judgment. See Pa.R.C.P. § 1035.2(1).

       In the instant case, although Defendants demanded an evidentiary hearing/oral argument

in the ad damnum clause of their Memorandum of Law in Support of their Opposition to

Plaintiffs Motion for Summary Judgment, neither party requested oral argument via praecipe as

required. Bucks County Rule of Civil Procedure ("B.C.R.C.P) 208.3(b)(6) states that "[ujnless

oral argument has been requested by the moving party in the praecipe, or by any other party

within the IO-day period specified in subsection (2) hereof, the matter shall be disposed of by

written order .... " Defendants did not request oral argument via praecipe when they filed their

Response. Although Defendants may have desired oral argument, Defendants' request failed to

satisfy the praecipe requirement of B.C.R.C.P. 208.3(b)(6). Therefore, this Court was not

required to provide oral argument and was permitted to dispose of the matter by written order.

    5) The TrialCourtCorrectlyConsidered Plainriff's Affidavit, Defendant's Loan
       History Documents, and the MergerDocuments




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        Defendants finally claim that this court erred in "admit[ing]" inadmissible "claimed

'evidence.'?'   In addressing this issue, we assume that Defendant is again relying on the specific

evidence attached to Plaintiffs Motion for Summary Judgment as set forth in their responsive

Memorandum of Law including the affidavit of Mr. Smalley, the payment history, and the

merger documents. We will address the admissibility of each in turn, but will first set forth the

dictates of Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932).

        The Nanty-Glo rule governs the use of oral testimony (either through affidavits or

depositions) to determine the outcome of a case in motions practice. The Rule dictates that

" ... the party moving for summary judgment may not rely solely upon its own testimonial

affidavits or depositions, or those of its witnesses, to establish the non-existence of genuine

issues of material fact." Dudley v. USX Corp., 606 A.2d 916, 918 (Pa. Super. 1992) (emphasis

added). The Rule, as explicated by the Pennsylvania Superior Court:

                The function of the summary judgment proceedings is to avoid a useless
        trial but is not, and cannot, be used to provide for trial by affidavits or trial by
        depositions. That trial by testimonial affidavit is prohibited cannot be emphasized
        too strongly. In considering a motion for summary judgment, the lower court must
        examine the whole record, including the pleadings, any depositions, any answers
        to interrogatories, admissions of record, if any, and any affidavits filed by the
        parties. From this thorough examination the lower court will determine the
        question of whether there is a genuine issue as to any material fact. On this critical
        question, the party who brought the motion has the burden of proving that no
        genuine issue of fact exists. All doubts as to the existence of a genuine issue of a
        material fact are to be resolved against the granting of summary judgment.

                In determining the existence or non-existence of a genuine issue of a
        material fact, courts are bound to adhere to the rule of [Nanty-Glo] which holds
        that a court may not summarily enter a judgment where the evidence depends
        upon oral testimony.

DeArmitt v. New York Life Ins. Co., 73 A.3d 578, 595 (Pa. Super. 2013).

        Three (3) factors determine the applicability of the Nanty-Glo Rule:

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       Initially, it must be determined whether the plaintiff has alleged facts sufficient to
       establish a prima facie case. If so, the second step is to determine whether there is
       any discrepancy as to any facts material to the case. Finally, it must be determined
       whether, in granting summary judgment, the trial court has usurped improperly
       the role of the [fact-finder] by resolving any material issues of fact. It is only
       when the third stage is reached that Nanty-Glo comes into play.

DeAnnitt v. New York Life Ins. Co., 73 A.3d at 594-95 citing Dudley v. USX Corp., 606 A.2d

at 920. Therefore, in order for the Nanty-Glo Rule to apply in the instant case, there must exist a

genuine discrepancy or dispute as to a material fact.

       Applying the Nanty-Glo analysis to the instant case, Plaintiff has shown without doubt,

by way of the pleadings and by way of Pa.R.C.P. 1029 ("Denials. Effect of Failure to Deny"),

that Defendants are in default of the Mortgage. Defendants' loan history records, obtained by

Plaintiff in the regular course of business, do not trigger the applicability of the Nanty-Glo Rule

because this evidence is not oral testimony and is not dependent upon the credibility and

demeanor of any witnesses.

       Most importantly, in terms of the affidavit and loan history, Defendants have not

provided any evidence to refute Plaintiffs accounting of damages. There is no discrepancy in

the amounts due and owing on the Mortgage. Furthermore, Defendants have not provided any

evidence to refute Mr. Smalley's computation of damages in the affidavit, nor have they refuted

the accuracy of the loan history records, and only go so far as to conclude they are

"indecipherable."

       Addressing the fees that Defendants deny they are liable for in their Response to

Plaintiffs Motion, including "appraisal fees," "property inspection" and post-acceleration

interest, these fees are specifically provided for in paragraph 14 of the Mortgage. See Compl.

Exh. A, Motion Exh. A. Furthermore, the Note, which was signed by Defendants, clearly states




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that the interest rate is 6.750% annually upon the unpaid principal. The Note explicitly provides

that this is the interest rate to be employed both before and after any default by Defendants.

       It is obvious that Plaintiff calculated the interest and fees based upon the information

provided in the Mortgage and the Note, both of which were contractually agreed to by

Defendants. Based upon the clearly delineated interest rate, amount of the monthly payments,

late charges (five percent (5.000%) of the overdue payment) and the amount of unpaid principal

on the loan, Defendants were fully capable of determining the amount of interest and late charges

that accrued from the date of default to the filing of the Complaint. Because these documents

speak for themselves in terms of the calculation of the interest, principal, and fees owed, Plaintiff

is not required to provide a step-by-step computation.

       Furthermore, in terms of an itemization of amounts due in Paragraph 7 of Plaintiffs

Complaint, Defendants responded that " ... after reasonable investigation, Defendants are without

knowledge or information sufficient to form a belief as to the truth of the averment and therefore,

said averment is expressly denied ... " Ans. at ,r 7. Defendants also provided that the Mortgage

and the Note are documents that "speak for [themselves] in [their] entirety" or "expressly

denied" their existence. Ans. at ,r,r 3, 4; Response at ilil 2-3.

        When it is clear that a party must know whether a particular allegation is true or false,

reliance on Pennsylvania Rule of Civil Procedure 1029(c) does not excuse a party's failure to

admit or deny the allegation. Cercone v. Cercone, 386 A.2d 1, 4 (Pa. Super. 1978); see also

Pa.R.C.P 1029(c). Further, "in mortgage foreclosure actions, general denials by mortgagors that

they are without information sufficient to form a belief as to the truth of averments as to the

principal and interest owing must be considered an admission of those facts." First Wisconsin

Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa. Super. Ct. 1995). Indeed, to date Defendant is



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"the only part[y] who would have sufficient knowledge           on which to base a specific

denial."     New York Guardian Mortgage        Coq,. v. Dietzel. 524 A.2d 951, 952 (Pa. Super. Ct.

1987). Thus, in the absence of any evidence to refute Defendants' averments,             Defendants'

general denials to Paragraph     7 of Plaintiffs    Complaint   (setting forth an itemized list of costs

associated    with default of this Mortgage)    contained   in his Answer constitutes   an admission.      See

Strausser,    653 A.2d at 692.

           Finally, the Merger documents    constitute   an official record and are thus admissible

pursuant to 42 Pa.C.S.A.     § 5328(a). Section 5328(a) provides that the prerequisite for the

admission of documents located outside the Commonwealth is that it be evidenced by a "copy

attested by the officer having the legal custody of the record, or by his deputy, and accompanied

by a certificate that the officer has the custody" of the document. Here, Plaintiff attached a

sealed Certificate from the Comptroller of the Currency evidencing the merger. See Compl.

Exh. A, Motion Exh. A.

           Ultimately, Defendants' Answer and New Matter and Response to Plaintiffs Motion for

Summary Judgment failed to create a genuine issue of material fact and, accordingly, Plaintiff is

entitled to judgment as a matter of law.

     V.        CONCLUSION

           The foregoing represents this Court's opinion regarding Defendants' appeal from the

Court's granting of Summary Judgment for Plaintiff.




                                                                     BY THE COURT:




                                                                                           RULO,JUDGE


                                                   Page 15 of 15
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                          RBS CITIZENS VS. ERIC BRODIE
                                   No. 2013-01556
                                   3316 EDA 2014


Copies Sent To:

Matthew B. Weisberg, Esquire
WEISBERG LAW, PC
7 South Morton Avenue
Morton, PA 19070-1707
Counselfor Appellant

Sean P. Mays, Esquire
LAW OFFICES OF GREGORY JA V ARD IAN
1310 Industrial Boulevard, Suite 101
Southampton, PA 18966
Counsel for Appellee

Janette Livezey,
Managing Editor
LAW REPORTER
Bucks County Bar Association
135 East State Street
Doylestown, PA 18901

Barbara A. Morris,
Law Library
BUCKS COUNTY COURTHOUSE
55 East Court Street, 1st Floor
Doylestown, PA 18901
