J-A05003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 WILMINGTON SAVINGS FUND                 :   IN THE SUPERIOR COURT OF
 SOCIETY FBS, D/B/A CHRISTIANA           :        PENNSYLVANIA
 TRUST, AS INDENTURE TRUSTEE             :
 FOR THE CSMC-2017-1 TRUST,              :
 MORTGAGE BACKED NOTES, SERIES           :
 2017-1                                  :
                                         :
               v.                        :
                                         :
 UNITED STATES OF AMERICA; AND           :
 KATHY HORVATH; AND THOMAS               :
 HORVATH, A/K/A THOMAS E.                :
 HORVATH                                 :
                                         :
                                         :
 APPEAL OF: KATHY HORVATH                :        No. 972 WDA 2018

                Appeal from the Order Entered June 7, 2018
           In the Court of Common Pleas of Washington County
                    Civil Division at No(s): 2016-2210


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY GANTMAN, P.J.E.:                      FILED APRIL 12, 2019

     Appellant, Kathy Horvath, appeals from the order entered in the

Washington County Court of Common Pleas, which granted summary

judgment in favor of Appellee, Wilmington Savings Fund Society FBS, d/b/a

Christiana Trust (“Bank”). We affirm.

     The relevant facts and procedural history of this case are as follows. On

August 2, 2000, Appellant and her husband, Thomas Horvath, granted a

residential mortgage in favor of Beneficial Consumer Discount Company, d/b/a

Beneficial Mortgage Company of Pennsylvania (“BCDC”), in the amount of

$125,999.61.        Appellant and Mr. Horvath failed to make the mortgage
J-A05003-19


payment due in June 2009, as well as all payments thereafter. On April 27,

2016, BCDC filed a mortgage foreclosure complaint against Appellant and Mr.

Horvath, and a praecipe to reinstate the complaint on June 7, 2016.       On

September 6, 2016, Appellant filed an answer and new matter. BCDC filed a

reply to Appellant’s new matter on September 30, 2016.

      On July 17, 2017, BCDC assigned the mortgage to Appellee, Bank, and

Bank filed a praecipe to substitute as plaintiff on August 25, 2017. On March

7, 2018, Bank filed a motion for summary judgment against Appellant. In

response, Appellant filed a brief in opposition to the motion on May 4, 2018.

On June 7, 2018, the court entered summary judgment in favor of Bank.

Appellant filed a praecipe to enter judgment in favor of Bank and a timely

notice of appeal on July 6, 2018.      On July 13, 2018, the court ordered

Appellant to file a concise statement of errors complained of on appeal, per

Pa.R.A.P. 1925(b); Appellant timely complied.

      Appellant raises the following issues for our review:

         DID THE [TRIAL] COURT ERR IN CONCLUDING THAT THERE
         ARE NO GENUINE ISSUES OF MATERIAL FACT REMAINING
         FOR DETERMINATION BY A FACT FINDER IN THIS MATTER
         ON THE ISSUE OF WHETHER APPELLANT…RECEIVED ANY
         BENEFIT OR CONSIDERATION FOR THE SUBJECT
         MORTGAGE LOAN?

         DID THE [TRIAL] COURT ERR IN DETERMINING THAT THERE
         ARE NO ISSUES OF MATERIAL FACT REMAINING WITH
         REGARD TO THE AMOUNT, IF ANY, OWED BY [APPELLANT]
         ON THE SUBJECT MORTGAGE LOAN?

(Appellant’s Brief at 6).


                                     -2-
J-A05003-19


     Our standard of review of an order granting summary judgment requires

us to determine whether the trial court abused its discretion or committed an

error of law. Mee v. Safeco Ins. Co. of Am., 908 A.2d 344, 347 (Pa.Super.

2006).

         Judicial discretion requires action in conformity with law on
         facts and circumstances before the trial court after hearing
         and consideration. Consequently, the court abuses its
         discretion if, in resolving the issue for decision, it misapplies
         the law or exercises its discretion in a manner lacking
         reason. Similarly, the trial court abuses its discretion if it
         does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal

citations omitted). Our scope of review is plenary. Pappas v. Asbel, 564 Pa.

407, 418, 768 A.2d 1089, 1095 (2001), cert. denied, 536 U.S. 938, 122 S.Ct.

2618, 153 L.Ed.2d 802 (2002). In reviewing a trial court’s grant of summary

judgment,

         [W]e apply the same standard as the trial court, reviewing
         all the evidence of record to determine whether there exists
         a genuine issue of material fact. We view the record 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. Only where there is
         no genuine issue as to any material fact and it is clear that
         the moving party is entitled to a judgment as a matter of
         law will summary judgment be entered. All doubts as to the
         existence of a genuine issue of a material fact must be
         resolved against the moving party.

         Motions for summary judgment necessarily and directly
         implicate the plaintiff’s proof of the elements of [a] cause of
         action.    Summary judgment is proper if, after the
         completion of discovery relevant to the motion, including
         the production of expert reports, an adverse party who will
         bear the burden of proof at trial has failed to produce

                                       -3-
J-A05003-19


         evidence of facts essential to the cause of action or defense
         which in a jury trial would require the issues to be submitted
         to a jury. In other words, whenever there is no genuine
         issue of any material fact as to a necessary element of the
         cause of action or defense, which could be established by
         additional discovery or expert report and the moving party
         is entitled to judgment as a matter of law, summary
         judgment is appropriate. Thus, a record that supports
         summary judgment either (1) shows the material facts are
         undisputed or (2) contains insufficient evidence of facts to
         make out a prima facie cause of action or defense.

         Upon appellate review, we are not bound by the trial court’s
         conclusions of law, but may reach our own conclusions.

Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)

(internal citations and quotation marks omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable William R.

Nalitz, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively discusses and properly disposes of the questions presented.

(See Trial Court Opinion, filed August 23, 2018, at 2-3) (finding: (2) Bank

provided sufficient evidence to prove existence of mortgage Appellant and Mr.

Horvath executed, including principal balance unpaid, advances for taxes,

insurance, and escrow; Appellant did not suggest any certain amount owed to

Bank; Appellant admitted in her answers to interrogatories that mortgage was

in default, she and Mr. Horvath had failed to make payments, and mortgage

was recorded in Washington County Recorder of Deeds in amount of

$125,999.61; (1) admissions in Appellant’s answers to interrogatories

established that Appellant’s signatures on mortgage, note, and other closing

                                     -4-
J-A05003-19


documents were not forgeries; Appellant’s claim that she received no benefit

from mortgage lacks merit, where Appellant and Mr. Horvath used proceeds

of mortgage loan to pay off existing debt or invest in family business).1

Accordingly, we affirm based on the trial court’s opinion.

       Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2019




____________________________________________


1 In its opinion, the trial court states that Appellant failed to oppose Bank’s
motion for summary judgment. The certified record indicates Appellant did
not answer the motion for summary judgment paragraph by paragraph, but
she filed a brief in opposition to Bank’s motion for summary judgment on May
4, 2018. Nevertheless, the court did not base its decision on any pleading
deficiency.

                                           -5-
                                                                                  Circulated 03/21/2019 03:05 PM



      IN THE COURT OF COMMON PLEAS OF WASHINGTON COUNTY, PENNSYLVANIA
                                          CIVIL DIVISION




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BENEFICIAL CONSUMER DISCOUNT                     )
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KATHY HORVATH, and THOMAS                        )
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HORVATH a/k/a THOMAS E. HORVATH                  )                                                     Qj

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                Defendants.                      )

                                     Pa.R.A.P.1925 Opinion


         On August 2, 2000, the defendants, Kathy and Thomas Horvath, signed and delivered to

Beneficial Consumer Discount Company (Plaintiff) a mortgage for $125,999.61 on property in North

Strabane Township, Washington County, Pennsylvania, located at 108 Fulton Road, Canonsburg, PA

15317.

         On June 2, 2016, Plaintiff filed a Complaint in Mortgage Foreclosure which alleged the

Horvaths failed to make their mortgage payments in June 2009 and all subsequent months. Defendant.

Kathy Horvath's (K. Horvath), Answer Containing New Matter alleged that she did not sign her name

to the mortgage or the other closing documents, that what appeared to be her signature was a forgery

and that the mortgage was therefore fraudulent. However, in K. Horvath's Answers to Interrogatories

(First Set), she admits that she was present at the closing of the loan held on August 2, 2000, with her

husband, Thomas Horvath, that she signed the HUD-lA Settlement Statement, that she signed the

mortgage, and that she understood that the closing she attended was for a loan.

          K. Horvath also claimed that she derived no benefit from the loan at issue, but the HUD-IA
Settlement Statement shows that she did receive a benefit from the loan in that it was used by

Defendants to pay off at least two prior mortgages for the property totaling $120, 000. Statements made

by a party in the pleadings, requests for admissions and stipulations of facts are treated as judicial

admission. Durkin v Equine Clinics, Inc., 546 A.2d 665 (Pa. Super. 1988). Through her interrogatory

answer K. Horvath admits that no forgery or fraud occurred when she signed the mortgage and other

closing documents on August 2, 2000.

                                                  Argument

I.     Whether this Court erred in concluding there are no genuine issues of material fact

        regarding the amount to be owed by Defendant to Plaintiff on mortgage

This Court finds Plaintiff provided sufficient evidence proving the existence of the mortgage executed

by Defendants, principal balance unpaid, advances for taxes, insurance, and any escrow. Certainly K.

Horvath did not suggest that there was any certain amount owed to Plaintiff. She filed no Response to

Plaintiff's Motion for Summary Judgment. Further, the Superior Court has previously held that the

mortgage holder is entitled to summary judgment if the mortgagor admits that the mortgage is in

default, has failed to pay on the obligation, and the recorded mortgage is in the specified amount. Bank

of Am .• N.A. v. Gibson, 102 A.3d 462, 464-65 (Pa. Super. 2014). Through her interrogatory answers,

K. Horvath has admitted that her mortgage is in default, that she and her husband have failed to make

payments, and the mortgage was recorded in the Washington County Recorder of Deeds in the amount

of$125,999.61.

II.     Whether there are any genuine issues of fact which remain relating to K. Horvath's

         liability on the mortgage

        We find the admissions by K. Horvath in her Answers to Plaintiffs Interrogatories to establish

that there .wasno forgery of K. Horvath's signature on the mortgage, note, or any other closing
documents and there is no basis for her fraud defense. There is no genuine issue of material fact

remaining with respect to whether fraud or forgery occurred in the creation, execution, and recording of

the mortgage of August 2, 2000, therefore K. Horvath remains liable for the mortgage that she fully

participated in executing.

III.   Whether there are any genuine issues of fact which remain relating to whether K. Horvath

        received any consideration or benefit from the mortgage loan

       K. Horvath's claim that she received no benefit from the mortgage is fruitless. At most, it

appears the proceeds of the loan were used either to pay off existing indebtedness or for a family

business. In either case, K. Horvath benefitted.

       IV. Whether this Court erred and committed an abuse of discretion in concluded there

were no genuine issues of material fact remaining for determination

       K. Horvath raised no other issues of material fact other than her defense of fraud and forgery,

and we found there is no basis for her fraud defense.

        Therefore, this court granted Plaintiffs Motion for Summary Judgement. We recommend the

appeal be dismissed.




                                                        BY THE COURT:




Cc:     Bradley King, Esq.
        Robert Colaizzi, Esq.
        Thomas and Kathy Horvath
