J-A17019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE BANK OF NEW YORK MELLON,                       IN THE SUPERIOR COURT OF
F/K/A/ THE BANK OF NEW YORK AS                           PENNSYLVANIA
TRUSTEE FOR THE
CERTIFICATEHOLDERS OF CWMBS, INC.,
CHL MORTGAGE PASS-THROUGH TRUST
2002-36, MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2002-36



                       v.

JOHN DIMOU; ANNA DIMOU; AND
WACHOVIA BANK NATIONAL
ASSOCIATION, OR ITS SUCCESSORS IN
INTEREST

APPEAL OF: JOHN AND ANNA DIMOU
                                                        No. 2596 EDA 2016


                       Appeal from the Order July 15, 2016
                 In the Court of Common Pleas of Lehigh County
                       Civil Division at No(s): 2013-C-4050


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

MEMORANDUM BY RANSOM, J.:                         FILED SEPTEMBER 08, 2017

        Appellants, John Dimou and Anna Dimou, appeal from the trial court’s

order of July 15, 2016, granting summary judgment in favor of Appellee, the

Bank of New York Mellon. After careful review, we affirm.

        The trial court set forth the relevant facts as follows:



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       The following facts are not in dispute. The Dimous, a married
       couple, purchased the Property [located at 5250 Pineview Drive,
       Center Valley, Pennsylvania, 18034] by deed recorded on
       September 19, 2001. Title was vested in both of their names.
       They financed the purchase of the Property with two mortgages
       to Sovereign Bank (“the Sovereign Mortgages”).

       Under date of November 22, 2002, John refinanced the Property
       with America’s Wholesale Lender. The refinancing was secured
       by a mortgage recorded and indexed as a lien upon the Property
       on December 19, 2002. Only John executed the Refinance
       Mortgage; Anna was not a party to it. The proceeds of the
       Refinance Mortgage were used to satisfy the Sovereign
       Mortgages. The Refinance Mortgage was assigned to [Appellee]
       pursuant to an Assignment of Mortgage recorded on June 12,
       2012.

       In its Amended Complaint, [Appellee] alleged the failure of Anna
       to execute the Refinance Mortgage was “[d]ue to an apparent
       mistake and despite the apparent intentions of the parties . . .”
       and that “[a]t all times material and relevant hereto, America’s
       Wholesale Lender and the Dimous intended that the Refinance
       Mortgage encumber the property . . .”

See Trial Court Opinion (TCO), 10/27/16, at 2-3 (citations to the record

omitted).

       Appellee instituted this action by the filing of a complaint to quiet title

on November 13, 2013, seeking to have the mortgage reformed to

encumber the interests of Anna Dimou and declare the mortgage as senior

in lien priority to a mortgage held by Wachovia Bank.1              See Compl.,

11/13/13, at ¶ 15. Appellants filed an answer with new matter in response,
____________________________________________


1
  This mortgage was recorded February 21, 2003, under Instrument Number
70604696 with the Recorder of Deeds of Lehigh County. See Compl.,
11/13/13, at ¶ 3. The Wachovia mortgage was not attached as an exhibit to
either the complaint or amended complaint.



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denying that Anna Dimou had intended to be encumbered by the mortgage.

See Answer, 12/31/13, at ¶¶ 1-15.

      In March 2015, Appellee filed its first motion for summary judgment,

which the court denied.      By permission of the court, Appellee filed an

amended complaint on October 13, 2015, requesting a reformation of the

mortgage and adding a count for declaratory relief under the doctrine of the

entireties presumption and an alternative count for an equitable lien.     See

Am. Compl., 10/13/15, at ¶¶ 17-44. Appellants filed an answer with new

matter in response.

      In April 2016, Appellee filed a motion for summary judgment.         The

motion averred that Appellants had failed to come forward with any evidence

to rebut the entireties presumption. See Mot. for Summ. J., 4/22/16, at ¶

37.

      Appellants filed an answer in opposition. On July 15, 2016, the court

granted Appellee’s motion.

      Appellants timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.        The trial court issued a

responsive opinion.

      On appeal, Appellants raise the following question for our review:

      Did the trial court judge abuse his discretion in determining that
      there was no genuine issue of material fact as to whether John
      Dimou’s actions benefitted his marriage?

Appellant’s Brief at 5.



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        Appellants contend that the trial court abused its discretion in granting

summary judgment and determining that no genuine issue of material fact

existed regarding whether the refinanced mortgages benefitted the marital

unit.    See Appellant’s Brief at 11.      Essentially, they claim that 1) the

refinanced mortgage increased the principal and remaining duration of the

mortgage; 2) Anna Dimou had no knowledge of the refinance mortgage until

ten years after the document had been executed; and 3) because the trial

court denied Appellee’s first motion for summary judgment, it should have

denied the second. Id.

        Our scope and standard of review of an order granting summary

judgment are well-settled.

        [S]ummary judgment is properly granted where there is no
        genuine issue as to any material fact and ... the moving party is
        entitled to a judgment as a matter of law. Summary judgment
        may be granted only where the right is clear and free from
        doubt. The moving party has the burden of proving that there is
        no genuine issue of material fact. The record and any inferences
        therefrom must be viewed in the light most favorable to the
        nonmoving party, and any doubt must be resolved against the
        moving party. The trial court will be overturned on the entry of
        summary judgment only if there has been an error of law or a
        clear abuse of discretion.

First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 691 (Pa. Super.

1995) (internal citations and quotations omitted).

        When mortgagors own properties as tenants by the entireties, the

“presumption . . . is that during the term of a marriage, either spouse has

the power to act for both, without specific authority, so long as the benefits


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of such action inure to both.”   News Printing Co. v. Roundy, 597 A.2d

662, 666 (Pa. Super. 1991) (quoting J.R. Christ Construction Company v.

Olevsky, 232 A.2d 196, 199 (Pa. 1967)). The presumption does not require

knowledge on the part of the other spouse and may be rebutted if the

spouse so acting was not authorized to act by the other spouse. J.R. Christ

Construction Company, 232 A.2d at 199. A spouse seeking to rebut the

presumption must establish by a preponderance of the evidence that, at the

time of the contract, the contracting spouse was not authorized to act for or

bind the other spouse. Id.

      Accordingly, in order to rebut the presumption of entireties, Anna

Dimou had to establish by a preponderance of the evidence that John Dimou

did not have the authority to refinance the house.        See, e.g., News

Printing Co., 597 A.2d at 666; J.R. Christ Construction Company, 232

A.2d at 199. Appellants did not establish this.

      To the contrary, the facts established that Anna Dimou and John

Dimou were married; the Property was jointly titled in their names; the

original mortgages were in both of their names; and the proceeds from the

refinance were used to satisfy the original mortgages. John Dimou testified

that the mortgage was offered to him in his name only but that he took the

advice of his broker and signed it without Anna Dimou. Anna Dimou testified

that she “does not do any of her finances” and had no reason to believe her

husband would act in a way that was not beneficial to her in managing her


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finances.   Further, the refinance consolidated two mortgages into one

mortgage at a lower interest rate.

      Nothing in the record, nor in Appellants’ argument, demonstrates that

John Dimou did not have the authority to enter into a mortgage on Anna

Dimou’s behalf.   On the contrary, Appellants’ argument focuses on lack of

knowledge, which is not a factor in the presumption of entireties. See, e.g.,

J.R. Christ Construction Company, 232 A.2d at 199.

      Appellants’ contention that they did not inure a benefit because the

principal and length of the mortgage increased is of no moment. First, the

proceeds of the refinance were used to satisfy two mortgages held in both

Anna Dimou and John Dimou’s names.         Second, it is only logical that the

consolidation of two mortgages into a single mortgage would increase the

principal, as both mortgages had accumulated interest during their lifetimes.

Despite the increase of the principal and term, the benefits were the lower

interest rate and lower monthly payment, facts Appellants conveniently

ignore.

      Finally, Appellants’ argument that the court abused its discretion in

granting a motion for summary judgment after first denying it is meritless.

The first motion was denied without prejudice to satisfy a dispute of fact and

to give Anna Dimou additional time for discovery to produce evidence to

rebut the presumption that she had authorized her husband to refinance the

property.   See Order, 5/28/15, at 1-2.     Following further discovery, the


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court granted the motion. Thus, as discussed above, this was not an error

or abuse of discretion in the court’s conclusion that Appellants were bound

by the presumption of the entireties or in its granting of summary judgment

in favor of Appellees. First Wisconsin Trust Co., 653 A.2d at 691.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




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