J-A31019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CITIZENS BANK OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MICHAEL L. AND JESSIE PINCUS               :
                                               :
                      Appellants               :   No. 21 EDA 2017

               Appeal from the Order Entered November 29, 2016
     In the Court of Common Pleas of Chester County Civil Division at No(s):
                                2014-11643-RC


BEFORE:      PANELLA, J., OLSON, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                                   FILED MAY 09, 2018

        Appellants, Michael L. and Jessie Pincus, appeal from an order entered

on November 29, 2016 in which the Court of Common Pleas of Chester

County granted summary judgment in favor of Citizens Bank of Pennsylvania

(“Citizens”) on its mortgage foreclosure claims. We affirm.1




____________________________________________


1 Although counsel represented Appellants before the trial court, Michael L.
Pincus, acting pro se, alone signed Appellants’ brief to this Court. In
addition, Mr. Pincus appeared at oral argument seeking to present argument
on behalf of both he and his wife. This practice is not permitted. See David
R. Nicholson, Builder, LLC v. Jablonski, 163 A.3d 1048, 1054 (Pa. Super.
2017) (“With very few exceptions, the general rule is that non-attorneys are
unable to represent parties before Pennsylvania courts and most
administrative agencies.”). Thus, while Mr. Pincus enjoyed the right to
appear on his own behalf, he does not have the right to represent his wife
before this Court. In light of our disposition of the merits of this appeal,
however, we need not formulate a remedy for Mr. Pincus’s transgression.


____________________________________
* Former Justice specially assigned to the Superior Court.
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      The historical and procedural facts in this case are as follows.          On

December 30, 2003, Michael L. Pincus executed a home equity line of credit

agreement with a principal amount of $250,000.00 in favor of Citizens. The

agreement was secured by a mortgage that created a lien against

Appellants’ residence in West Chester, Pennsylvania. The mortgage, which

Appellants both signed, was recorded in the Chester County Office of the

Recorder of Deeds on March 12, 2004. Appellants made payments toward

their obligation with Citizens until February 2014, when the last payment

was tendered. Citizens forwarded statutory notice of default to Appellants

on July 9, 2014.        On July 9, 2014, Appellants met with an agent of the

Pennsylvania        Housing   Finance     Agency   (“PHFA”)   and   completed   an

application    to    participate   in   the   Homeowners    Emergency   Assistance

Program.      PHFA, however, denied Appellants’ application for assistance on

September 9, 2014.

      Citizens filed its complaint in this mortgage foreclosure action on

November 25, 2014.            Appellants filed their answer, together with new

matter, on December 29, 2014. Citizens replied to Appellants’ new matter

on January 16, 2015.

      Appellants applied to Citizens for a loan modification on April 6, 2015.

On April 16, 2015, Citizens advised Appellants’ counsel by letter that

Appellants’ application for loan modification was incomplete because it failed

to include all requested documents.           Citizens also advised Appellants that

they needed to submit all required documents no later than May 30, 2015 to

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avoid removal from the loss mitigation program. Citizens thereafter did not

receive the necessary documents and, on May 20, 2015, sent a second letter

to Appellants’ counsel that the requested documents were needed on or

before May 30, 2015. Because Appellants’ loss mitigation materials were not

received in a timely manner, Citizens rejected Appellants from the loss

mitigation program on June 4, 2015.

     Citizens served Appellants with discovery requests on June 13, 2016,

including requests for admissions, interrogatories, and document requests.

Appellants served their responses on July 29, 2016. On August 24, 2016,

Citizens filed its motion for summary judgment.      Appellants filed their

response to Citizens’ motion for summary judgment on September 20, 2016.

The trial court granted Citizens’ motion on November 29, 2016.

     On December 8, 2016, Appellants filed a petition asking the court to

reconsider its order granting Citizens’ motion for summary judgment. The

petition alleged that Appellants were denied equal protection under the

United States and Pennsylvania Constitutions because Chester County did

not adopt a foreclosure mediation program as other counties in Pennsylvania

had done. The trial court denied Appellants’ petition on December 13, 2016.

     On December 23, 2016, Appellants filed a notice of appeal from the

order granting Citizens’ motion for summary judgment.       Thereafter, on

January 3, 2017, the trial court ordered Appellants to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On January 12, 2017, Appellants filed a notice of appeal from the court’s

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December 23, 2016 order denying their motion for reconsideration.             On

January 18, 2017, Appellants filed a concise statement asserting that the

affidavit and documents submitted by Citizens in support of its motion for

summary judgment constituted inadmissible hearsay. No other issues were

asserted.    The trial court issued its Rule 1925(a) opinion on February 14,

2017.

        Appellants’ brief raises the following questions for our review.

        [Did the trial court err in considering the affidavit and documents
        submitted by Citizens to establish Appellants’ payment history
        under their loan agreement?]

        [Was Citizens obligated to set up a face-to-face meeting with
        Appellants to negotiate in good faith a payoff amount to avoid
        mortgage foreclosure litigation?]

        [Should the trial court have denied Citizens’ motion for summary
        judgment because the lender ignored Appellants’ efforts to pay
        off the outstanding amount owed under the loan?]

        [Were Appellants denied equal protection of the law under the
        United States and Pennsylvania Constitutions because Chester
        County did not adopt a mortgage foreclosure mediation
        program?]

Appellants’ Brief at 3-4.2

        Appellants assert that the trial court erred in granting Citizens’ motion

for summary judgment.

        We review an order granting summary judgment for an abuse of
        discretion. Indalex, Inc. v. Nat'l Union Fire Ins. Co. of
____________________________________________


2   We have re-ordered Appellants’ claims to facilitate our review.



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      Pittsburgh, PA, 83 A.3d 418, 420 (Pa. Super. 2013). Our
      scope of review is plenary, and we view the record in the light
      most favorable to the nonmoving party. Id. A party bearing the
      burden of proof at trial is entitled to summary judgment
      “whenever there is no genuine issue of any material fact as to a
      necessary element of the cause of action or defense which could
      be established by additional discovery or expert report[.]”
      Pa.R.C.P. 1035.2(1).     In response to a summary judgment
      motion, the nonmoving party cannot rest upon the pleadings,
      but rather must set forth specific facts demonstrating a genuine
      issue of material fact. Pa.R.C.P. 1035.3.

Bank of America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014).

      The holder of a mortgage has the right, upon default, to bring a

foreclosure action. Cunningham v. McWilliams, 714 A.2d 1054, 1056–57

(Pa. Super. 1998).    Summary judgment is proper in mortgage foreclosure

litigation where the defendant admits the failure to make payment and fails

to state a cognizable defense to the plaintiff’s claim.    Gateway Towers

Condominium Ass’n v. Krohn, 845 A.2d 855 (Pa. Super. 2004).

      Although Appellants’ initial claim is undeveloped, they appear to argue

that the trial court erred in granting summary judgment because evidence of

their payment history and default was established by the affidavit of a loan

officer   and   supporting   documentation.   Appellants   are   correct   that

Pennsylvania law ordinarily prohibits the entry of summary judgment based

on the moving party's oral testimony. See Sherman v. Franklin Regional

Med. Ctr., 660 A.2d 1370, 1372 (Pa. Super. 1995); Nanty–Glo v.

American Surety Co., 163 A. 523 (Pa. 1932). “An exception to this rule

exists, however, where the moving party supports the motion by using


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admissions of the opposing party....” Sherman, 660 A.2d at 1372. Such

admissions include facts admitted in pleadings. Durkin v. Equine Clinics,

Inc., 546 A.2d 665, 670 (Pa. Super. 1988).

      Here, Appellants generally denied the material portions of Citizens’

complaint and their responses to discovery did not contradict Citizens’

factual averments surrounding Appellants’ payment history and default.

General denials constitute admissions where specific denials are required.

See Pa.R.C.P. 1029(b). Appellants’ admissions with respect to the material

allegations of Citizens’ complaint permitted the trial court to enter summary

judgment in this case.     Moreover, the affidavit of Citizens’ loan officer

referenced loan history documents, which are records of regularly conducted

activity, or business records, and would be admissible at trial with proper

foundation. See Pa.R.E. 803(6). In sum, the trial court did not abuse its

discretion in considering the affidavit and documents proffered by Citizens.

      Appellants’ next two claims assert that the trial court should have

denied   summary     judgment   because    Citizens   overlooked   or   ignored

Appellants’ efforts to negotiate a payoff of their loan obligations and avoid

foreclosure.   These claims do not merit relief.      As a preliminary matter,

Appellants did not include these issues in a court-ordered concise statement;

hence, they are waived.     Even if they are not waived, these claims are

unavailing.    This Court has held that new regulations, entitled “Mortgage

Servicing Rules under the Real Estate Settlement Procedures Act (Regulation


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X),” codified at 12 C.F.R. §§ 1024.30 et seq., prohibit a loan servicer from

foreclosing on a property if the borrower has submitted a completed loan

modification, or loss mitigation, application. Bank of New York Mellon v.

Brooks, 169 A.3d 667, 670 (Pa. Super. 2017). Here, however, the record

establishes that Appellants never submitted a completed loan modification,

or loss mitigation, application.      Indeed, Appellants’ December 8, 2016

petition for reconsideration asserts that they never filed a loan modification.

See Petition for Reconsideration, 12/8/16, at 1. The record further reflects

that Citizens twice informed Appellants that their application materials were

incomplete and that the required documents needed to be submitted no

later than May 30, 2015.        Appellants were deemed ineligible for Citizens’

modification/mitigation program only after the deadline passed without the

submission of a timely and complete application.       Accordingly, Appellants’

second and third claims fail.

      Appellants’ final claim asserts that they were denied equal protection

of the law because Chester County did not adopt a mortgage foreclosure

mediation program, as other Pennsylvania counties had done, at the urging

of the Pennsylvania Supreme Court.         Again, Appellants waived appellate

review of this claim by failing to include it in a court-ordered concise

statement. In addition, Chester County was not obligated to adopt such a

program and Appellants cite no authority for the proposition that they were




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entitled to rely on the adoption of such a program.   Thus, this claim also

fails.

         Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/18




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