J-S78013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEUTSCHE BANK NATIONAL TRUST                      IN THE SUPERIOR COURT OF
COMPANY AS TRUSTEE FOR CDC                              PENNSYLVANIA
MORTGAGE CAPITAL TRUST 2003-HE4
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2003-HE4, BY
ITS ATTORNEY IN FACT, OCWEN LOAN
SERVICING, LLC,

                            Appellee

                       v.

JOSEPH DEPANICIS, JR., AND NANCY
DEPANICIS,

                            Appellants                 No. 277 WDA 2016


              Appeal from the Judgment Entered February 4, 2016
             In the Court of Common Pleas of Westmoreland County
                     Civil Division at No(s): No. 324 of 2012


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 20, 2016

        Joseph Depanicis, Jr., and Nancy Depanicis (hereinafter “Appellants”),

appeal from the February 4, 2016 judgment entered after the trial court

granted a Motion for Summary Judgment filed by Appellee, Deutsche Bank

National Trust Company, as trustee for CDC Mortgage Capital Trust 2003-

HE4 Mortgage Pass-Through Certificates, Series 2003-HE4, by Its Attorney

in Fact, Ocwen Loan Servicing, LLC (hereinafter “Deutsche Bank”).         We

affirm.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      The trial court summarized the procedural history of this case as

follows:
             A complaint in mortgage foreclosure was filed on January
      18, 2012. In said complaint …, Deutsche Bank, alleged that
      [Appellants], Joseph Depanicis and Nancy Depanicis, were in
      default of a mortgage securing property that Deutsche Bank
      assumed in January 2012. The complaint set forth all averments
      required by Pennsylvania Rule of Civil Procedure 1147.
      [Appellants] filed an Answer on March 14, 2012. Each averment
      was denied pursuant to Pennsylvania Rule of Civil Procedure
      1029(c) except for the averment relating to [Appellants’]
      identities and address and the averment relating to the existence
      of the mortgage.

            [Deutsche Bank] filed a Motion for Summary Judgment
      that was heard and denied without prejudice on February 7,
      2014. At that time, there was no proof regarding Act 6 and Act
      91 notices. It was stated in the Order of Court that [Deutsche
      Bank] could refile the summary judgment request upon proof of
      said notices. [Appellants] also filed a Motion for Leave to Amend
      Answer and New Matter. This motion was denied by Order of
      Court dated May 14, 2014. [Deutsche Bank] renewed its Motion
      for Summary Judgment and filed a Brief in Support of [the]
      same. [Appellants] filed an Answer to Summary Judgment that
      [they] served on [Deutsche Bank] at the time of oral argument
      on January 19, 2016.

Trial Court Opinion (TCO), 1/26/16, at 1-2 (unnumbered).

      After the January 19, 2016 hearing, the court issued an order on

January 25, 2016, granting Deutsche Bank’s Motion for Summary Judgment.

On February 4, 2016, judgment was entered in favor of Deutsche Bank in

the amount of $107,643.49. Appellants filed a timely notice of appeal, and

also timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. The trial court filed a

Rule 1925(a) opinion on April 14, 2016.


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      Herein, Appellants present two issues for our review:
      1. Did the [trial] [c]ourt … commit an error of law when it denied
      [Appellants’] Motion for Leave to Amend Answer and New
      Matter?

      2. Did the [trial] [c]ourt … commit an error of law when it
      granted summary judgment where [Appellants] claimed that
      they were not, in fact, in default on their mortgage and in
      support [they] attached their payment history (provided by
      Deutsche Bank) as an exhibit showing that they made a
      “Forbearance Payment” of … []$8,300.00[] and that less than
      one (1) month later Deutsche Bank served them with a
      foreclosure lawsuit?

Appellants’ Brief at 3.

      Preliminarily, Deutsche Bank argues, and we are compelled to agree,

that Appellants have waived their first issue for our review. Appellants did

not raise this claim in their Rule 1925(b) statement, despite the trial court’s

directive in its Rule 1925(b) order that any issues not raised in the concise

statement would be deemed waived.        See Trial Court Order, 3/1/16.     In

their Rule 1925(b) statement, Appellants presented one issue, which

essentially mirrors the second issue they raise herein. Because they failed

to state in their Rule 1925(b) statement any claim pertaining to the trial

court’s denial of their Motion for Leave to Amend Answer and New Matter,

they have waived their first issue for our review.             See Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).

      In regard to Appellants’ second issue, we are guided by the following

standard of review:



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            In reviewing an order granting summary judgment, our
      scope of review is plenary, and our standard of review is the
      same as that applied by the trial court. Our Supreme Court has
      stated the applicable standard of review as follows: [A]n
      appellate court may reverse the entry of a summary judgment
      only where it finds that the lower court erred in concluding that
      the matter presented no genuine issue as to any material fact
      and that it is clear that the moving party was entitled to a
      judgment as a matter of law. In making this assessment, we
      view the record in the light most favorable to the nonmoving
      party, and all doubts as to the existence of a genuine issue of
      material fact must be resolved against the moving party. As our
      inquiry involves solely questions of law, our review is de novo.

             Thus, our responsibility as an appellate court is to
      determine whether the record either establishes that the
      material facts are undisputed or contains insufficient evidence of
      facts to make out a prima facie cause of action, such that there
      is no issue to be decided by the fact-finder. If there is evidence
      that would allow a fact-finder to render a verdict in favor of the
      non-moving party, then summary judgment should be denied.

Harris v. NGK N. Am., Inc., 19 A.3d 1053, 1063 (Pa. Super. 2011)

(quoting Jones v. Levin, 940 A.2d 451, 452–454 (Pa. Super. 2007)

(internal citations omitted)).

      In this case, Appellants’ argument challenging the trial court’s decision

to grant Deutsche Bank’s Motion for Summary Judgment consists of the

following two paragraphs:

            On October 5, 2015, Deutsche Bank filed a second Motion
      for Summary Judgment. [Appellants] filed an Answer to Motion
      for Summary Judgment, with an attached exhibit, showing that
      they made a “Forbearance Payment” of eight-thousand-three-
      hundred dollars ($8,300.00) and that less than one (1) month
      later Deutsche Bank served them with a foreclosure lawsuit.
      This foreclosure was prior to the present foreclosure, but the
      exhibit evidenced a chain reaction of Deutsche Bank[’s] holding
      [Appellants] in default, at least with flawed accounting, at the
      most, when they were in fact not in default at all. In other


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J-S78013-16


      words, the exhibit raised the issue of whether the element of
      default was even present.

             The [trial] [c]ourt … should not have granted summary
      judgment in these circumstances, especially with [Appellants’]
      home at stake. 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. Atocovitz v. Gulf
      Mills Tennis Club, Inc., 812 A.2d 1218 (Pa[.] 2002). In the
      present case, there was a genuine issue of material fact as to
      whether [Appellants] were in default. Moreover, the exhibit
      showing the forbearance payment at least supported an
      inference that [Appellants] were not in default. Even where
      there is no dispute concerning the facts, a motion for summary
      judgment should not be granted where those facts support
      conflicting inferences. Washington v. Baxter, 719 A.2d 733
      (Pa. 1998)[.]

Appellants’ Brief at 15-16 (citations to the record omitted).

      Appellants’ reliance on the $8,300 forbearance payment fails to

convince us that there is a genuine issue of material fact in this case. The

record demonstrates that Appellants made the forbearance payment of

$8,300 on March 17, 2010. Appellants admit that the foreclosure action

filed one month later “was prior to the present foreclosure” action, id. at

15, which was initiated by Deutsche Bank’s filing of a complaint on January

18, 2012.     In that complaint, Deutsche Bank stated that Appellants’

mortgage was “in default as a result of the failure to pay the monthly

installments of $1,178.21 due on April 1, 2011 and on the same day of

each month thereafter.” Complaint, 1/18/12, at 2 ¶ 6 (emphasis added).

Appellants do not explain how the March 17, 2010 forbearance payment of

$8,300 demonstrated, or even suggested, that they were not in default



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J-S78013-16



between April 1, 2011 and January 18, 2012, when this foreclosure action

was initiated by Deutsche Bank. Accordingly, the forbearance payment does

not convince us that there is a genuine issue of material fact regarding

whether Appellants had defaulted on their mortgage payments.

     Instead, we agree with the trial court that Appellants’ Answer

effectively admitted that the mortgage was in default.        In its opinion

accompanying its order granting Deutsche Bank’s Motion for Summary

Judgment, the court explained:

            [Appellants’] Answer denied the existence and amount of
     default on the mortgage pursuant to [Pa.R.C.P.] 1029(c),
     indicating that after reasonable investigation they were without
     knowledge or information sufficient to form a belief as to the
     truth of the matter. In New York Guardian Mortgage Corp.
     v. Dietzel, … 524 A.2d 951, 952 ([Pa. Super.] 1987), the
     Superior Court held that, “in mortgage foreclosure actions,
     general denials by mortgagors that they are without information
     sufficient to form a belief as to the truth of the averments as to
     the principal and interest owing [on a mortgage] must be
     considered an admission of those facts.” This is because “apart
     from appellee, appellants are the only parties who would have
     sufficient knowledge of which to base a specific denial.” Id. at
     429. This position is further supported by the note to subsection
     (c) of Rule 1029, which provides that “reliance upon subsection
     (c) does not excuse a failure to deny or admit factual allegations
     when it is clear that the pleader must know if the allegations are
     true or not.” City of Philadelphia v. Hertler, … 539 A.2d 468,
     472 ([Pa. Cmwlth.] 1988). Therefore, based on the applicable
     case law, [Appellants’] general denial of the existence and
     amount of the mortgage default was actually an admission of the
     same. As a result, there is no issue of material fact in dispute.

TCO at 3 (unnumbered).

     Having reviewed Dietzel, we agree with the trial court that it supports

a conclusion that Appellants’ Answer effectively admitted that the mortgage


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J-S78013-16



was in default. Additionally, Appellants’ forbearance payment does not raise

a genuine issue of material fact regarding whether the mortgage was in

default. Accordingly, we ascertain no error in the court’s decision to grant

Deutsche Bank’s Motion for Summary Judgment.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2016




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