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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  THE DIME BANK                          :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
  DAVID J. LORING & DONNA M.             :
  LORING,                                :
                                         :   No. 211 EDA 2018
                    Appellants           :

             Appeal from the Judgment Entered December 8, 2017
             In the Court of Common Pleas of Northampton County
                  Civil Division at No(s): c48-CV-2017-02842


BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 16, 2018

      Appellants, David J. Loring and Donna M. Loring, appeal from the

December 8, 2017 judgment entered in favor of The Dime Bank. We affirm.

      On October 6, 2003, Appellants signed a promissory note in the amount

of $256,600.00. To guarantee payment on the promissory note, Appellants

executed a mortgage on property located in Bethlehem, Pennsylvania.

Thereafter, Appellants failed to make payments on the promissory note.

      On April 3, 2017, The Dime Bank filed a complaint seeking to foreclose

on the mortgage. On October 11, 2017, The Dime Bank moved for summary

judgment. On November 9, 2017, Appellants filed an answer to the summary

judgment motion. On November 27, 2017, The Dime Bank filed a reply brief

and attached a supplemental affidavit from Robert F. Davis, its special assets

officer.   In that affidavit, Davis stated that The Dime Bank possessed the
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promissory note in question. On December 8, 2017, the trial court granted

The Dime Bank’s summary judgment motion and entered judgment in favor

of The Dime Bank and against Appellants. This timely appeal followed. 1

       Appellants present one issue for our review:

       Did the [trial court err] when it granted summary judgment to The
       Dime Bank?

Appellants’ Brief at 3.

       In their lone issue, Appellants argue that the trial court erred in granting

The Dime Bank’s summary judgment motion.              “The trial court’s entry of

summary judgment presents a question of law, and therefore our standard of

review is de novo and our scope of review is plenary.” Branton v. Nicholas

Meat, LLC, 159 A.3d 540, 545 (Pa. Super. 2017) (citation omitted).              “A

motion for summary judgment is based on an evidentiary record that entitles

the moving party to a judgment as a matter of law.” Yenchi v. Ameriprise

Fin., Inc., 161 A.3d 811, 818 (Pa. 2017) (citation omitted). “In considering

a motion for summary judgment, a court views the evidence in the light 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.”



____________________________________________


1  On January 19, 2018, the trial court ordered Appellants to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On February 12, 2018, Appellants filed their concise
statement. On February 13, 2018, the trial court issued an order relying on
its December 8, 2017 opinion. Appellants’ lone issue was included in their
concise statement.

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Green v. Pennsylvania Prop. & Cas. Ins. Guar. Ass’n, 158 A.3d 653, 658

(Pa. Super. 2017), appeal denied, 174 A.3d 571 (Pa. 2017) (citation omitted).

“When the facts are so clear that reasonable minds cannot differ, a trial court

may properly enter summary judgment.” Brown v. Everett Cash Mut. Ins.

Co., 157 A.3d 958, 962 (Pa. Super. 2017) (citation omitted).

      First, Appellants argue that the trial court erred in finding that The Dime

Bank satisfied its burden of proving that it possessed the promissory note.

This argument is without merit. As noted above, The Dime Bank attached a

supplemental affidavit from Robert F. Davis to its reply brief. In that affidavit,

which Appellants never contested, Davis stated that “The [Dime] Bank is the

holder and in possession of the original promissory note dated October 5,

2003[.]”   Affidavit of Robert F. Davis, 11/27/17, at 1.        Appellants argue,

however, that the trial court erred by considering Davis’ affidavit. They argue

that considering Davis’ affidavit, which was attached to The Dime Bank’s reply

brief, was in error. Specifically, they argue that the affidavit was filed too late,

i.e., after the motion for summary judgment was filed. This argument fails

for multiple reasons.

      Appellants rely on Commonwealth v. Diamond Shamrock Chem.

Co., 391 A.2d 1333 (Pa. Cmwlth. 1978) in support of their argument that the

trial court improperly considered Davis’ affidavit. Appellants conveniently do

not quote the portion of Diamond Shamrock in which the Commonwealth

Court stated that “it is within the court’s discretion to determine whether filing


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of ‘further affidavits’ that is, affidavits in addition to the initial supporting and

opposing affidavits shall be permitted.”        Id. at 1337.      Thus, Diamond

Shamrock supports the trial court’s decision to consider Davis’ affidavit.

      Although Diamond Shamrock is only persuasive authority, it correctly

sets forth Pennsylvania law.      Pennsylvania Rule of Civil Procedure 1035.4

provides that, “The court may permit affidavits to be supplemented or

opposed by depositions, answers to interrogatories, or further affidavits.”

Pa.R.C.P. 1035.4 (emphasis added). In this case, the trial court exercised its

discretion and permitted the affidavit submitted by Davis at the time The Dime

Bank moved for summary judgment to be supplemented by his affidavit

attached to The Dime Bank’s reply brief.

      Appellants also argue that the supplemental affidavit and reply brief

were barred under Northampton County’s local rules of civil procedure. The

rules, however, do not forbid such affidavits and reply briefs. Northampton

County Local Rule 211 does not address the filing of reply briefs nor does it

address the filing of supplemental affidavits. See Northampton Cnty. L. R.

211. Moreover, Northampton County Local Rule 1035.2 specifically permits

parties moving for summary judgment to file reply briefs. See Northampton

Cnty. L. R. 1035.2(a)(3).      Hence, the trial court’s consideration of Davis’

supplemental affidavit did not violate Northampton County’s local rules of civil

procedure.




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      Alternatively, Appellants argue that Davis’ supplemental affidavit was

insufficient to prove that The Dime Bank held the promissory note. The record

reflects, however, that Davis’ original affidavit, filed with The Dime Bank’s

motion for summary judgment, referenced and attached a copy of the

promissory note. Affidavit of Robert F. Davis, 10/11/17, at 2 and Exhibit B.

Hence, this was not a mere “testimonial affidavit” barred by Borough of

Nanty-Glo v. Am. Sur. Co. of New York, 163 A. 523 (Pa. 1932). Instead,

it was documentary evidence supported by Davis’ two affidavits. See Telwell

Inc. v. Grandbridge Real Estate Capital, LLC, 143 A.3d 421, 427 (Pa.

Super. 2016) (Nanty-Glo not implicated when affidavit is supported by

documentary evidence including the promissory note). Moreover, Nanty-Glo

is not implicated when an affidavit in a mortgage foreclosure action is also

supported by the defendants’ admissions. See Bank of Am., N.A. v. Gibson,

102 A.3d 462, 466 (Pa. Super. 2014), appeal denied, 112 A.3d 648 (Pa.

2015).   As discussed infra, the trial court properly construed two of

Appellants’ general denials as admissions. Hence, there was no question of

material fact regarding The Dime Bank’s possession of the promissory note.

      Second, Appellants argue that The Dime Bank lacked standing to pursue

the instant mortgage foreclosure action because it was acting as a loan

servicer. This argument is based on a misunderstanding of Pennsylvania law.

“In a mortgage foreclosure action, the mortgagee is the real party in interest”

and therefore has standing to litigate a mortgage foreclosure action. Bayview


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Loan Servicing LLC v. Wicker, 163 A.3d 1039, 1045 (Pa. Super. 2017),

appeal granted on other grounds, 178 A.3d 1289 (Pa. 2018). In this case,

The Dime Bank is listed as the mortgagee. See Affidavit of Robert F. Davis,

10/11/17, at Exhibit C. Moreover, the note is a bearer instrument because it

“does not state a payee[.]” 13 Pa.C.S.A. § 3109(a)(2). As The Dime Bank

was the mortgagee, and possessed the bearer instrument promissory note, it

had standing to bring the instant mortgage foreclosure action.

      Finally, Appellants argue that the trial court erred in finding that they

admitted to defaulting on the promissory note and mortgage and finding that

they admitted the amount due was $204,623.66. We conclude that Appellants

admitted these facts. In their answer, Appellants stated that, “It is specifically

denied any default occurred under the note and mortgage and the borrower

failed to make payments due to the bank thereunder.           By way of further

answer the bank is not due any funds from the [Appellants].”          Appellants’

Answer, 9/14/17, at 1. Appellants further stated that

      It is specifically denied that any amount is due the bank. By way
      of further answer [it] is specifically denied the amount due as of
      March 3, 2017 is $204,623.66 consisting of principal [in] the
      amount of $197,482.32[,] interest to March 1, 2017 in the amount
      of $5,247.47[,] and late charges in the amount of $1,826.66
      exclusive of attorney fees and costs.

Id. at 2.

      In light of Appellants’ admission earlier in their answer that they

executed the relevant promissory note and mortgage, id. at 1, these denials

were general denials. Appellants did not aver that they were current with

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their payments and/or that they already satisfied the full amount of the

promissory note. It is well-settled that “general denials constitute admissions

where—like here—specific denials are required.” Bayview Loan Servicing,

163 A.3d at 1044 (citation omitted). As this Court explained in Bayview Loan

Servicing, “general denial relating to mortgage default constitutes an

admission[.]” Id; see First Wis. Tr. Co. v. Strausser, 653 A.2d 688, 692

(Pa. Super. 1995) (General denials “as to the principal and interest owing [on

the mortgage] must be considered an admission of those facts.”).        In this

case, Appellants’ denials were general and, therefore, properly construed as

admissions. Hence, the trial court properly found that there were no issues

of material fact and The Dime Bank was entitled to summary judgment.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/18




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