J-A31029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PENNY MAC CORP.                                    IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

HAQNAWAZ CHUGHTAI AND SALEEMA
CHUGHTAI

                            Appellants                  No. 857 EDA 2016


                   Appeal from the Order Entered March 9, 2016
                  In the Court of Common Pleas of Bucks County
                        Civil Division at No(s): 2013-06809


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                                FILED MAY 03, 2017

       Haqnawaz Chughtai and Saleema Chughtai (“the Chughtais”) appeal

from the March 9, 2016 order of the Bucks County Court of Common Pleas

granting Penny Mac Corporation’s (“Penny Mac”) motion for summary

judgment.1 We affirm.

       The well-reasoned opinion of the Honorable Brian T. McGuffin set forth

the detailed factual and procedural history underlying this appeal, which we

adopt and incorporate herein. See Opinion, 5/5/16, at 1-3 (“1925(a) Op.”).


____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
         The Chughtais initially appealed a February 18, 2016 order, which
the trial court amended on March 9, 2016 at the request of Penny Mac to
reflect an error in calculation.
J-A31029-16



      On appeal, the Chughtais raise the following issue: “Did the trial court

commit an error of law in granting foreclosing lender’s Motion for Summary

Judgment when [Penny Mac]’s motion was founded upon an inadmissible

testimonial affidavit?” Chughtais’ Br. at 8.

      It is well-established that “summary 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.” Truax v. Roulhac, 126 A.3d 991, 996 (Pa.Super.) (quoting

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 (Pa.

2002)), app. denied, 129 A.3d 1244 (Pa. 2015).       The moving party bears

the burden of proving that no genuine issue of material fact exists .

Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 159 (Pa. 2009). “[T]he

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 . . . .”    Truax, 126 A.3d at 996

(internal citation omitted).

      We have explained our standard of review as follows:

         [A]n 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.



                                     -2-
J-A31029-16



Id. (quoting Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 902–

03 (Pa. 2007)).

       The Chughtais claim that the trial court should have denied Penny

Mac’s motion for summary judgment because the motion was solely

supported by an inadmissible affidavit, and because their general denials to

the complaint should not have been treated as a deemed admission that a

properly negotiated note existed through the chain of loan title. 2

       In its opinion, the trial court set forth the relevant law, addressed the

Chughtais’ claim, and properly determined that summary judgment was

appropriate. See 1925(a) Op. at 4-8. In their answer to the complaint, the

Chughtais made general denials, which constitute admissions. See Bank of

Am., N.A. v. Gibson, 102 A.3d 462, 466 (Pa.Super. 2014).              This fact,

coupled with the affidavit provided by Penny Mac, the Act 6 notice, 3 and

proof of the mortgage assignments, shows that there was no genuine issue

____________________________________________


       2
        The Chughtais waived their further contention that Penny Mac failed
to establish a properly endorsed note through the chain of loan title by not
raising it in their response to Penny Mac’s motion for summary judgment.
See Devine v. Hutt, 863 A.2d 1160, 1169 (Pa.Super. 2004) (“[A]rguments
not raised initially before the trial court in opposition to summary judgment
cannot be raised for the first time on appeal[.]”).
       3
        See 41 P.S. § 403 (providing that a residential mortgage lender must
give the residential mortgage debtor notice of its intention to “accelerate the
maturity of any residential mortgage obligation, commence any legal action
including mortgage foreclosure to recover under such obligation, or take
possession of any security of the residential mortgage debtor for such
residential mortgage obligation” at least 30 days in advance).



                                           -3-
J-A31029-16



of material fact and that Penny Mac was entitled to judgment as a matter of

law. After reviewing the briefs, the record, and the relevant law, we affirm

based on the trial court’s cogent reasoning. See 1925(a) Op. at 4-8.

     Because the Chughtais failed to set forth a genuine issue of material

fact, we conclude that the trial court did not abuse its discretion or commit

an error of law in granting Penny Mac’s motion for summary judgment.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2017




                                    -4-
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                                                                                                 .                                  .
      IN THE COURT OF COM:MON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
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 PENNYMAC CORP.,
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                                                           No.: ~2013~06809                                                                 Cft,z:-
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 HAQNAW AZ CHUOHTAl and
 SALEEMA CHUGHTAI,
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                                    Appellants.

                                                       .
                                                  OPINION

        Appellants, Haqnawaz Chughtai and Saleema Chughtai, appeal from the Court's Order

dated February l8, 2016, granting Motion for Summary Judgmentin favor of Appellee, PennyMac

Corporation, in this mortgage foreclosure action. The Court files this opinion pursuan, to

Pennsylvania Rules of Appellate Procedure 19Z5(a).

                                        STATEMENT OFFACTS

        This mortgage foreclosure action was brought initially by JPMorgan Chase Bank, Natiqnal

Association,' on September 4~ 2013, against Haqnawas Chughtai and Saleema Chughtai

('Appellants"), for the.foreclosure of 1765 Antumn.Leaf'Lane, Huntingdon Valley, Pennsylvania

19006 (°Ptoperty''). In the Complaint, JPMorgan alleged that Appellants executed and delivered
                       -~


a Mortgage on the Property to Mortgage Electronic Registration Systems, Inc. ("MERS,,), as

nominee for Home Loan Center, Inc. dlb/ti Lending Tree Loans(''Jfome Loan Center"), on April

1, 2006. (Compl.   ?if 4-5.)   Appellee attached the Mortgage as Exhibit E in its Motion for                                 Summary
                                                  -,

Judgment The Mortgage was also recorded on June 12, 2006. (Appellee'$ Mot. for Summ, J.; Ex.

E.) Appellants further signed and deljvered an accompanying Adjustable Rate Rider, attached to

the Motion as Exhibit G.
L.                   ~   .J..   llL                                                 .... _   JS;.....
                                                                                                                     ··--- ·~   ...!-~




        On April 25, 2012, the mortgage was assigned.to JPMorgan. (Compl.       ,r 6.) The assignment
 was recorded on May ts. 2012. (Appellee~s Mot. for Summ, J., Ex. F.)Then on January 9, 2014,

 the Mortgage was sold by JFMorgan; and all rights to the Property were transferred and assigned
                                                     .                                                         I




 to PennyMac Corporation ("Appellee''). ~ -at p. 5.
                               .          .
        On June 9, 2015, Appellee filed.for substitution and replaced JPMorgan as the creditor in

 this action. Appellee subsequently filed the instant Motion for summary Judgment on October 19,

 2015, and the Court received Appellants' Responseon November 18~ 2015,

        Appellants in their Answer to the Complaint admitted to being the mortgagors of the

 Property; (Compl. ~ 2-3.) Appellee in its Motion for Summary Judgment also attached the signed

 and notarized Mortgage. (Appellee's Mot. for Summ. J., Ex. E p. 2.) Whil~ AppeJhmts' d~ny

 signing a mortgage in favor of MERS, the fully executed Mortgage expressly states under

 Definitions (C) that "MERS is the mortgagee under the Security Instrument," and that MER.$ is

 actii:lg solely as a nominee for theLender, Id. The Mortgage further states that the Lenderis Home

 Loan Center. Id. All of this was alleged .in JPMorgan and Appellee's Complaint (See Compl.1
4.)

        As to the rest of :the allegations found in the Compiaint, Appe).lants either admit or provide

 general denials. {See Answer,        Yi   4-10.) For example, ,JPMorgan and Appellee alleged that

Appellants defaulted on the Mortgage as of January 1, 2012~ but Appellants only responded with

a denial. and that they lacked knowledge or information sufficient to answer. Id. at                    fl   .8-9.

Moreover, Appellee attached the Act 6 Notice that was sent-to Appellants as Exhibit B to its
Motion for SummaryJudgment and Appellants did notptovide any explanationor evidence to the

contrary.




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~-.   ~                   •...   -···    i,-_,            ~ '   ...... ••   .o..(.
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             In addition, Appellee attached an· "Affidavit in Support of Plaintiff' s Motion for Summary

      Judgment,' with its Motion. Inthe Affidavit, an employee with authority to make representations

      on behalf of Pe~yMac              Corporation attested thats based on business records, PennyMac

      Corporation purchased Appellants' Mortgage from JPMorgan and that the Mortgage had been in

      default since January 1,2012.

             In Appellants' Response to Appellee~s Motion, they included only a one page
      memorandum of law. (Docket No. 29.) Appellants merely asserted that Appellee had failed to meet

      its burden of proof. Id. Appellants also incorrectly asserted that the only evidence that was

      provided was in the form on an inadmissible testimonial hearsay, the Affidavit, and that the

      Affidavit could not be considered under ij"anty--Olo· v. American Suxety Co., 163 A. 523 (Pa

      1932). Id.

             After a teview of the case, including all filings and exhibits, the Court granted summary

      judgment in favor of Appellee .on February 18, 2016> entering an in rem judgment against

      Appellants in the amount of $465,921.83, together with interest and other costs and charges

      collectible under the mortgage. The Court amended the Order dated February. It 2016, on March

      9, 2016, at Appellee's request to lower the judgment amount to $46l,903.83 to reflect the true

      debt, as the original proposed order provided· by Appellee included an error in calculation.

             Appellants now appeal from this Court's Order dated February 18, 2016,. alleging that the

      Court improperly granted summary judgment.

                   STATEMENT OF MATTERS COMPLAINED                                                     OF ON APPEAL

             On April 1, 2016, Appellants submitted a Concise Statement of Matters Complained of on

      Appeal, raising the following for review:

          1. Whether the Court of Common Pleas erred in entering summary judgment?


                                                          3
    2. Wheth~r the Court of Common Pleas erred in entering summary judgment when there

        existed genuine issues of material fact and Plaintiff-Appellee was not entitled to judgment

        as a matter of law?

    3. Whether the trial court erred in failing to apply the appropriate swnmary judgment standard

       in its ~rant ofsunnnary judgment?

    4. Whether the trial court erred by consideration and admission of inadmissible evidence

       including but not limited to Plaintiff-Appellee's motion's attached testimonial hearsay

        affidavit?

                                         DISCUSSION

        The Court was well within its authority in granting summary judgmen;in favor of Appellee

in this mortgage foreclosure lawsuit. "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 Ol" defense which could be established by additional discovery or

expert report?" Bankof Alp,., N.A. v. Gibson.102 A.3d 462,464 (Pa. Super. Ct. 2014) (quoting
Pa.RC.P. No. 1035.2(1))~ appeal denied. l 12 A.3d 648 (Pa. 2015).

       In considering the merits of a motion fur summary judgment, a court views the record in

the ·tight 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. Jones v. SEPIA, 772 A.2d 435,
438 (P~ 2001). However, ''[i]n response to a summary judgment motion, the nonmoving party

cannot I'C$t upon the pleadings, but.rather must :set forth specific facts demons1rating a genuine
issue of material fact. Oibsoq, 102 A.3d at 464 (citing Pa.R,C.P, No. 1035.3).

       "It is well-settled that the mere assertion   that a matmal issue of fact exists without
producing any evidence is insufficient to defeat a motfon for summary judgment," Ling v .. Com.,



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Dep't of Transp .• 79 A3d 1, 3 (Pa. Commw.     co, ru_,peal denied,,, 81   A.3d 79 (Pa. 2013). Also,

general denials or demands for proof have the effect of admissions. Se~ Cercone v. Cercone, 386

A.2d 1, 7-9 (Pa. Super. Ct 1978). Furthermore, "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 [on the mortgage]           must be          considered an

admission of those facts," Gibson. 102 A.3d at 466 (citations omitted).

       "The holder of a mortgage has the right, UJ)Oll default, to bring a foreclosure action,"

Gibson.. 102 A3d at 464-65 (citation omitted). ''The holder of'a mortgage is entitled to summary

judgment if the mortgagor admits that the mortgage is in default the mortgagor has failed to pay

on the obligation, and the recorded mortgage is in the specified amount," Iii.

       Appellants argue now on appeal that the Court impermissibly considered the supporting

Affidavit as provided in Appellee's Motion. The Superior Court has already squarely addressed

this issue against Appellants. 'See Gibson, 102 A.3d at 466~67 (holding that summary judgment
was proper where the trial court relied on the bank's affidavit in addition to the mortgagor's

deemed admissions). In that case, the mortgagor argued on appeal that the· trial court erred .in

granting summary judgment by relying on an affidavit that was inadmissible hearsay. Id.
       "The Nanty-Glo decision directs that summary judgment may not be entered where the

moving party relies exclusively upon oral testimony, either through testimonial affidavits or

deposition testimony, to establish the absence of a genuine issue of material fact," Porterfield v.

Trustees ofHoso. of Univ. o!Pennsylvania. 657 A2d 1293, 1294-95 (Pa. Super. Ct. 1995) (citation

omitted). However, "[ a]n exception to this rule exists where the moving party supports the motion

by using admissions of the opposing party ':}t the opposing party's own witnesses." Id, Accord

Lineberger v. Wv~     894 A.2d 141, 149 (Pa. Super. Ct. 2006).



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                                        .ii~ .. 1h:..




          In Gibson. 102 A..3d at 466;.67, the mortgagor had responded to the bank's complaint with

only general denials, which were treated as deemed admissions. Under the Nanty-Glo exception,

the Superior Court there affirmed the trial court's reliance on the bank's supporting affidavit

because of the mortgagor's deemed admissions in granting summary judgment.~ id.

          The Superior Court in Gibson fiJrtMr stated that the referenced loan     history documents   as·

attached to the affidavit, were records of regularly conducted activity, or business records, and

would be admissible attrial with proper foundation in any event. Id. (Pa.R.E. 8Q3(6); 42 Pa.C.S.

§ 6108). This Court, under the analysis pf Gibson, could properly consider not just the Affidavit

itself, because. Appellants responded with only general denials to the Complaint as will be

discussed in. the following paragraphs,. but also the referenced business records attached as exhibits

to the Motion.

        Moreover, "[s]ummary judgment is proper when the pleadings, depositions, answers to

interrogatories, and admissions ~n file, togeth4'rwith any affidavits, show that~          isno genuine

issue as to any material fact and that the moving party is entitled tojudgment as a matter of law."

Kenney v. Jeanes Ho~ .• 769 A.2d 492, 495 (Pa. Super. Ct. 2001) (emphasfa added) ..

        In the instant   CMC,   the exception to Nanty-Glo applies because Appellants hi their Answer·

responded with only general denials. Appellants admitted in their answer that they are the

mortgagor owners of the Property. (Compl. ,i, 1-3.) Intheir Response to.Appellee's .Motion; they

denied ever executing or delivering any Mortgage to MERS as nominee for Home. Loan Center.

(Answer    ,r 4.) However, the attached       Mortgage in Appellee's Motion clearly indicates that it is

signed by Appellants, and that MERS acted as nominee for Home Loan Center. (App~llee's,Mot.

for Summ. J., Ex. E p. 2.)




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                   ln addition, Appellee in its Complaint alleged that Appellants have been in default since

           January 1, 2012. and includes a detailed list of'the itemized charges it believed Appellants owed.

           (Compl. ff 8-9.) Appellee again provided only general denials, by impermissibly stating that after

           reasonable investigation that they were without knowledge or information to answer, (Answer '11'1

           8-9). As stated previously, 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 on the mortgage must be considered an admission. of those facts.

           Gibson, 102 A.3d at466~

                  Furthermere, there is no genuine issue of material fact that Appellee's are the mortgage

           holder and that the Act 6 Notice has been provided. Appellee has provided. with its Motion as part

           of Exhibits   a, E, and F, the Notice that was sentand   proof of the mortgage assignments. Appellants

           have provided no explanation or evidence to the contrary and that their denials should be rejected.

                  Moreover, the Affidavit provided by Appellee in this case is not, as Appellants argue,

           impermissibletestimonial hearsay under Nanty-Glo. Just like in Gibson. Appellants responded to
           the Complaint with only general denials end their responses ate deemed admission. Also, Appellee

          attached the signed Mortgage and Adjustable Rate Rider an.d evidence of the various assignments
          that took place. Therefore; the Court could, and did, consider the Affidavit as further evidence that
          Appellants had defaulted. and that Appellee was entitled to judgment.

                  In thiscase, Appellants have wholly failed to set forth specific        facts   demonstrating· a

          genuine issue of material fact Appellants had an obligation to make monthly payments pursuant

          to the Mortgage and the Adjustable Rate Rider. Appellee has alleged that Appellants defaulted on
          January 1, 2012, andthat no payments have been made since then, Appellants failed to properly

          object or provide any evidence that payments have been tendered. The Mortgage and the


                                                              7



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                                    ..   ·: ..   L.   Ji..                                      -·-   '.t,.~ :.t:.. ... ~ .......




accompanying rider include an acceleration clause, provisions fur reasonable attorney's - fees and
                                                                                                                                    j
                                                                                                                                    I
costs associated with enforcement, including property inspections, ~ (Appellee Mot Summ, J .,                                       i
fat. E ,,i 14, 22, Md Ex. G ,r 7.) Therefore, based on all the available evidence, and the Jack of any
_ genuine dispute of material fact, we did not err by granting summatyjudgmentinAppeUee;s-favor.

                                                 CONCLUSION

        This Court's Order granting summaryjudgment in PennyMac Corporation'sfavor should

be affirmed.
