J-A08035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    THE BANK OF NEW YORK MELLON                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MIRIAM PRYOR                               :
                                               :
                      Appellant                :   No. 2610 EDA 2015

                   Appeal from the Order Dated July 15, 2015
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2014 08760


BEFORE:      PANELLA, LAZARUS, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED April 25, 2017

        In this mortgage foreclosure action, Miriam Pryor (“Appellant”) appeals

pro se from the July 15, 2015, order granting the Bank of New York Mellon’s

(“Appellee”) motion for summary judgment, awarding its judgment in rem

for $655,218.18, plus interest and costs, and dismissing with prejudice

Appellant’s counterclaim. We affirm.

        The relevant facts and procedural history are as follows: On February

23, 2007, Appellant executed a mortgage and promissory note for

$315,000.00 to Madison Equity Corporation, for real property located at

1360 Horseshoe Drive, Blue Bell, Pennsylvania.           On March 26, 2007, the

mortgage was duly recorded, and on May 21, 2008, the mortgage was
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*
    Former Justice specially assigned to the Superior Court.
J-A08035-17


transferred to Madison Equity Corporation. On December 12, 2008, the

mortgage was transferred to Appellee.

     On April 21, 2014, Appellee commenced the instant action by filing a

complaint in mortgage foreclosure averring that payments had not been

received for November 2007 and all payments thereafter. Thus, as of April

7, 2014, the amount due, including interest, fees, and legal costs, totaled

$620,263.03. Appellee sought a judgment in rem for foreclosure of the

mortgage property in the stated amount.

     On July 7, 2014, Appellant filed a pro se answer, new matter, and

counterclaim raising allegations of predatory lending, use of an exorbitant

interest rate, fraud in the inducement, and bad faith. Among other things,

Appellant sought counsel fees pursuant to 42 Pa.C.S.A. § 2503, as well as

monetary damages.

     On July 25, 2014, Appellee filed preliminary objections to Appellant’s

counterclaim alleging that Appellant’s counterclaim did not present claims

pertaining to the “creation” of the mortgage, and thus, it should be stricken

under Pa.R.C.P. 1148.     Alternatively, Appellee alleged the counterclaim

should be stricken since the foreclosure action is strictly in rem and

Appellant’s claim for monetary damages was improper.

     Appellant filed a pro se answer to Appellee’s preliminary objections.

Therein, Appellant alleged that her claim of fraud in the inducement

pertained to the creation of the mortgage.    She also sought an “award of


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damages...for the necessity of defending the frivolous preliminary objections

in...an amount equal to reasonable attorney’s fess as if [Appellant] was an

attorney.”    Appellant’s Answer to Appellee’s Preliminary Objections, filed

8/21/14.

     By order filed on November 10, 2014, the trial court denied Appellee’s

preliminary objections and denied Appellant’s request for attorney’s fees in

defending the preliminary objections.    Thereafter, on November 25, 2014,

Appellee filed a reply to Appellant’s counterclaim, noting therein that

Appellant admitted in her answer and new matter that she was in default of

the mortgage and living in the subject property without paying the

mortgage, taxes, or insurance since November 2007.

     On May 7, 2015, Appellee filed a motion for summary judgment, along

with a supporting brief, averring that Appellant’s chronic failure/refusal to

make payments constituted a default of the mortgage. Appellee attached to

its motion the pre-foreclosure notice of intention to foreclose and the

Homeowner’s Emergency Mortgage Assistance forms, which were sent to

Appellant.    Appellee averred that Appellant failed to cure the default, and

her responsive filings in the within matter were dilatory and designed solely

to delay.    Moreover, Appellee argued that, under Pennsylvania law, it was

permitted to seek attorney’s fees at five percent of the principal balance of

the delinquent mortgage loan. Simply put, Appellee argued that Appellant

had no viable defenses to the action, and Appellant’s counterclaim was


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inappropriate in this in rem matter. Accordingly, Appellee argued that there

are no genuine issues of material fact and it is entitled to judgment as a

matter of law.

        On June 4, 2015, Appellant filed a pro se response, along with a

supporting memorandum, to Appellee’s motion for summary judgment.

Therein, she averred generally that there was a genuine issue of material

fact as to whether “the obligation to make monthly mortgage payments was

the product of fraud which included fraud in the inducement and predatory

lending[.]” Appellant’s Response to Summary Judgment Motion, filed 6/4/15,

at 1.    She alleged that there was a genuine issue of material fact as to

whether “her inability to make payments on the highly inflated interest and

principal as a result of the fraud in [the] inducement and predatory lending

on the part of [Appellee’s] predecessor...renders the allegation of default

false[.]” Id. at 2. Additionally, Appellant averred there was a genuine issue

of material fact as to whether the misrepresentations made by Appellee’s

predecessor, and the high interest rate on the mortgage, “doomed”

Appellant “to fail based upon her income.” Id. at 3. Appellant argued that

there was a genuine issue of material fact as to whether Appellee was not

entitled to attorney’s fees as it had acted in bad faith in instituting the

mortgage foreclosure action as “a result of fraudulent and predatory

lending[.]” Id. at 5.




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      By order entered on July 15, 2015, the trial court granted Appellee’s

motion for summary judgment and decreed that judgment was entered in

favor of Appellee in the amount of $655,218.18, plus interest.            The trial

court noted that “any additional recoverable costs and charges collectible

under the subject mortgage [ ] shall also be added to this judgment.” Trial

Court’s   Order,   filed   7/15/15.   The   trial   court   dismissed   Appellant’s

counterclaim with prejudice.

      On August 14, 2015, Appellant filed a timely, pro se notice of appeal,

and on August 20, 2015, Appellee filed a praecipe for the entry of judgment

in the amount of $673,596.84, which included the summary judgment

amount of $655,218.18, and accrued interest from February 12, 2015, to

August 17, 2015, in the amount of $18,378.66. The trial court did not direct

Appellant to file a Pa.R.A.P. 1925(b) statement, and consequently, no such

statement was filed. On September 3, 2015, the trial court filed an opinion

in support of its July 15, 2015, order.

      Appellants presents the following issue sole issue, which we set forth

verbatim:

      1. Did the Learned Trial Judge abuse her discretion and commit
         error by granting the Motion for Summary Judgment filed by
         [Appellee] when there were genuine issues of material fact
         concerning fraud in the inducement[?]

Appellant’s Brief at 3.

      On appeal, Appellant contends the trial court erred in entering

summary judgment in favor of Appellee as there were genuine issues of

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material fact concerning fraud in the inducement.            To this end, Appellant

contends there is evidence she was “fraudulently induced into entering [the]

mortgage      loan   with   [Appellee’s]    predecessor     in   interest,”   including

fraudulent misrepresentations made by the lender regarding Appellant’s

ability to repay.    Appellant’s Brief at 5.     She further argues that the trial

court erred in entering an order granting summary judgment where

discovery was not complete and where, if given more time, she could have

demonstrated there was a genuine issue of material fact as to her defense

as asserted in her counterclaim.           Specifically, she claims that additional

discovery would have shown the “identity of the individual(s) who made the

false   statements    and    induced   [Appellant]     to   sign   a   mortgage     for

$315,000.00[.]” Id. at 10.

        Initially, we note we review a challenge to the entry of summary

judgment as follows:

               [We] may disturb the order of the trial court only where it
        is established that the court committed an error of law or abused
        its discretion. As with all questions of law, our review is plenary.
              In evaluating the trial court's decision to enter summary
        judgment, we focus on the legal standard articulated in the
        summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
        states that where there is no genuine issue of material fact and
        the moving party is entitled to relief as a matter of law,
        summary judgment may be entered. Where the nonmoving
        party bears the burden of proof on an issue, he may not merely
        rely on his pleadings or answers in order to survive summary
        judgment. Failure of a non-moving party to adduce sufficient
        evidence on an issue essential to his case and on which he bears
        the burden of proof establishes the entitlement of the moving
        party to judgment as a matter of law. Lastly, we will review the
        record in the light most favorable to the nonmoving party, and

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      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa.Super. 2013)

(quotation omitted).

      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). 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. Id. See Gateway Towers Condominium Ass’n

v. Krohn, 845 A.2d 855, 858 (Pa.Super. 2004) (holding a trial court

properly grants summary judgment in a mortgage foreclosure action “where

the defendant[/mortgagor] admits that he [ ] failed to make the payments

due and fails to sustain a cognizable defense to the plaintiff’s claim”)

(citation omitted)).

      In finding there was no genuine issue of material fact, and Appellee

was entitled to judgment as a matter of law, the trial court set forth the

following analysis in its opinion:

      In her Answer to [Appellee’s] Complaint in Mortgage
      Foreclosure, [Appellant] conceded that “the mortgage payments
      have not been made for a considerable [ ] period of time.” See
      Answer, New Matter and Counterclaim to Complaint for Mortgage
      Foreclosure. Specifically, the printed payment history of the
      loan demonstrates that [Appellant] has not paid her mortgage
      for over SEVEN YEARS. It was th[e] [trial] court’s conclusion
      that [Appellee] proved its damages through the Affidavit in


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       Support of [Appellee’s] Motion for Summary Judgment and the
       payoff calculation related to the loan.

Trial Court Opinion, filed 9/3/15, at 3 (emphasis in original).

       On appeal, Appellant does not dispute that Appellee demonstrated the

requisite elements set forth in Cunningham, supra. Rather, she contends

that the trial court erred in entering an order granting summary judgment

where the parties were still engaged in discovery and where, if given more

time, she could have demonstrated there was a genuine issue of material

fact concerning her defense of fraud in the inducement as asserted in her

counterclaim. In rejecting this claim, the trial court indicated the following:

             In her Answer to Motion for Summary Judgment,
       [Appellant] included an Affidavit in which she again maintained
       that she was induced to sign the mortgage by [Appellee’s]
       predecessor in interest. She then claimed she has not been able
       to engage in discovery but also alleged she requires a significant
       amount of documentation to prove [Appellee’s] [alleged] scheme
       and predatory lending practices.
            Counterclaims in mortgage foreclosure actions are only
       permissible if they arise from the same transaction from which
       the plaintiff’s cause of action arose. Pa.R.C.P. 1148; Green
       Tree Consumer Discount Co. v. Newton, 909 A.2d 811, 814
       (Pa.Super. 2006). Fraud in the inducement[1] is a recognizable
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1
 The elements of fraud in the inducement are as follows:
     (1) a representation; (2) which is material to the transaction at
     hand; (3) made falsely, with knowledge of its falsity or
     recklessness as to whether it is true or false; (4) with the intent
     of misleading another into relying on it; (5) justifiable reliance
     on the misrepresentation; and (6) the resulting injury was
     proximately caused by the reliance.
Eigen v. Textron Lycoming Reciprocating Engine Div., 874 A.2d 1179,
1185 (Pa.Super. 2005) (quotation marks and quotation omitted).
(Footnote Continued Next Page)


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      counterclaim, [in a foreclosure action provided it alleges fraud
      that is part of or incident to the creation of the mortgage itself].
      Cunningham, [supra]. However, a defendant bears the burden
      of proving [her] counterclaim. A court may determine there are
      no genuine issues of material fact (and consequently grant a
      motion for summary judgment) when a defendant does not meet
      [her] burden of defending against the allegations alleged by
      plaintiff or move forward by proving [her] counterclaim.
             On December 24, 2014, [Appellee] served [Appellant] with
      discovery requests consisting of Requests for Admissions,
      Interrogatories, and Request for Production of Documents.
      [Appellant] failed to respond to both the Interrogatories and
      Request for Production of Documents. See [Appellee’s] Exhibit
      10 to [Appellee’s] Motion for Summary Judgment. Since there
      was no response by [Appellant], [Appellee] (and the court) could
      only conclude that there is no evidence in existence to support
      the averments in [Appellant’s] pleadings. Moreover, [Appellant]
      did absolutely nothing to secure and produce evidence of the
      allegations contained within her counterclaim since the [trial
      court] ruled upon [Appellee’s] preliminary objections and allowed
      [Appellant’s] counterclaim to move forward. In her answer to
      [Appellee’s] Motion for Summary Judgment, [Appellant] now
      alleges she “intends to promulgate interrogatories and request
      for production of documents to [Appellee],” almost one year
      after the [trial court] ruled on [Appellee’s] preliminary objections
      and allowed [Appellant’s] counterclaim to move forward.
      Instead of attempting to prove her claims by engaging in
      discovery, [Appellant] continues to file rote allegations against
      [Appellee]. After living in a house rent-free for over seven
      years, it is evident that [Appellant] has absolutely no motivation
      to move this case forward. It is [the trial court’s] belief that
      [Appellee’s] Affidavit, the payment history of the loan, and
      [Appellant’s] discovery responses demonstrate not only a lack of
      genuine issue of material fact but also [Appellant’s] lack of
      evidence to support her averments. [Appellant] provided no
      demonstrative evidence to contradict that which was submitted
      by [Appellee].



                       _______________________
(Footnote Continued)




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Trial Court Opinion, filed 9/3/15, at 3-4 (citations omitted) (emphasis in

original) (footnote added).

      We find no error in this regard.       Assuming, arguendo, Appellant is

correct that the trial court granted summary judgment prior to the formal

close of discovery, this was not error.      Pa.R.C.P. 1035.2 provides that a

party may move for summary judgment at any time 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, or after

the completion of discovery relevant to the motion.

      As the trial court noted, with regard to discovery, Appellant had ample

time to engage in discovery relevant to the case, defenses, and issues.

Moreover, aside from bald assertions, Appellant makes no meaningful

argument as to the materiality of the information sought.

      Appellant lived rent free by refusing to make the mortgage payments

for over seven years. Clearly, the trial court did not abuse its discretion in

granting summary judgment in favor of Appellee despite the fact that

discovery had not closed.     See, e.g., Reeves v. Middletown Athletic

Ass’n, 866 A.2d 1115 (Pa.Super. 2004) (indicating that a motion for

summary judgment was not premature where the opposing party had ample

time to conduct discovery, failed to do so, and did not demonstrate

additional discovery would reveal material information).

      Affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2017




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