J-A26010-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FIRST HORIZON HOME LOANS, A                   IN THE SUPERIOR COURT OF
DIVISION OF FIRST TENNESSEE BANK                    PENNSYLVANIA
NATIONAL ASSOCIATION C/O
NATIONSTAR MORTGAGE LLC



                    v.

SUSAN L. DORRIN

                         Appellant
                                                   No. 40 MDA 2017


              Appeal from the Order Entered December 5, 2016
              In the Court of Common Pleas of Lancaster County
                      Civil Division at No(s): CI-14-01083


BEFORE: BOWES, OLSON, AND RANSOM, JJ.

MEMORANDUM BY BOWES, J.:                          FILED MARCH 23, 2018

      Susan L. Dorrin appeals from the December 5, 2016 order granting

summary judgment in favor of First Horizon Home Loans, a division of First

Tennessee Bank National Association c/o Nationstar Mortgage LLC.       We

affirm.

      On December 20, 2005, Ms. Dorrin executed a mortgage and

associated promissory note in the amount of $122,232.00, and secured by

the property located at 219 Cartledge Lane, Millersville, Lancaster County.

The mortgage was recorded on December 22, 2005, and Ms. Dorrin

delivered it to the Mortgage Electronic Registration System (“MERS”) as
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nominee for First Horizon Home Loan Corporation. Among other provisions,

the mortgage required Ms. Dorrin to maintain a homeowner’s insurance

policy on the property at all times. On July 6, 2009, MERS, as nominee for

First Horizon Home Loan Corporation, assigned the mortgage to First Horizon

Home Loans, a division of First Tennessee Bank National Association (“First

Horizon”), and that assignment was recorded on July 20, 2009. Nationstar

administered the mortgage on behalf of First Horizon.

     The record reveals that, sometime in 2012, State Farm, Ms. Dorrin’s

homeowner’s insurance provider, notified Nationstar that her policy had

lapsed. On December 8, 2012, Nationstar sent a letter to Ms. Dorrin, which

apprised her that her insurance policy had lapsed as of November 21, 2012,

and requested that she provide proof of insurance compliant with the terms

of her mortgage. On January 10, 2013, Nationstar sent Ms. Dorrin a second

letter, which notified her that it had not received proof of insurance, and

warned her that if they did not receive such proof within thirty days,

Nationstar would obtain a one-year policy, referred to as a forced-insurance

policy, on her behalf and at her expense. Again, Ms. Dorrin failed to offer

such proof.   Thus, on February 16, 2013, Nationstar obtained a one-year

homeowner’s insurance policy, effective November 21, 2012 through

November 21, 2013, on Ms. Dorrin’s behalf, at a yearly premium of

$1,288.00.




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      Shortly thereafter, Ms. Dorrin provided Nationstar with evidence of a

homeowner’s    insurance   policy   effective   December   21,   2012   through

December 21, 2013. As a result, on February 22, 2013, Nationstar informed

Ms. Dorrin that it cancelled the prior forced-insurance policy effective

December 20, 2012, but indicated that its records showed a lapse remained

in her coverage from November 21, 2012 until December 20, 2012.             As

such, Nationstar advised Ms. Dorrin that she would be billed for the premium

owed for that timeframe unless she provided further proof of insurance. Ms.

Dorrin did not provide proof of insurance for that interval.

      Subsequently, Nationstar discovered that Ms. Dorrin cancelled her

policy. Consequently, on April 4, 2013, it requested that she provide proof

of a replacement policy. Ms. Dorrin did not provide such proof, and on May

4, 2013, Nationstar cautioned her that if it did not receive proof of insurance

within thirty days, it would again purchase a policy on her behalf and at her

expense. On June 26, 2013, Nationstar purchased a homeowner’s insurance

policy effective December 20, 2012, through December 20, 2013, at a yearly

premium of $1,245.00, and charged the premium to Ms. Dorrin’s mortgage

payments. Ms. Dorrin refused to pay the increased monthly amount, and no

payments were recorded after May 2013.

      On February 12, 2014, First Horizon initiated this action by filing a

complaint in mortgage foreclosure.     The complaint alleged that Ms. Dorrin

defaulted on the note and mortgage by failing to make her monthly payment

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beginning on May 1, 2013, and each month thereafter. Further, it alleged

that Ms. Dorrin owed $98,893.97 in remaining principal, plus additional fees

and charges. Finally, First Horizon claimed that it complied with the Act 91

notice requirements. Ms. Dorrin did not file a responsive pleading, and thus,

on March 26, 2014, the court entered a default judgment against her. On

January 16, 2015, the court granted Ms. Dorrin’s motion to open default

judgment, and this matter proceeded to discovery.         Subsequently, both

parties filed for summary judgment.        On December 5, 2016, the court

granted First Horizon’s cross-motion for summary judgment and denied Ms.

Dorrin’s motion for summary judgment. Ms. Dorrin filed a timely notice of

appeal to this Court, and filed a Rule 1925(b) concise statement of errors

complained of on appeal. The trial court authored its Rule 1925(a) opinion,

and this matter is now ready for our review.

      Ms. Dorrin raises a single question for our consideration:

      I.    Did the trial court err as a matter of law, both in granting
            [First Horizon’s] motion for summary judgment and in
            denying [Ms. Dorrin’s] motion for summary judgment,
            when the undisputed facts were that [First Horizon]
            refused to accept [Ms. Dorrin’s] monthly mortgage
            payment and wrongfully charged her for force placed
            homeowner’s insurance when [Ms. Dorrin’s] own
            homeowner’s insurance company erred by indicating the
            homeowner’s insurance was canceled when, in fact, it
            never was canceled?

Appellant’s brief at 4.




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     The following principles guide our review following the grant or denial

of a motion for summary judgment:

     [o]ur scope of review of a trial court’s order granting or denying
     summary judgment is plenary, and our standard of review is
     clear: the trial court’s order will be reversed only where it is
     established that the court committed an error of law or abused
     its discretion.

     Summary judgment is appropriate only when the record shows
     that there is no genuine issue of material fact and that the
     moving party is entitled to judgment as a matter of law. The
     reviewing court must review the record in the light most
     favorable to the nonmoving party and resolve all doubts as to
     the existence of a genuine issue of material fact against the
     moving party. Only when the facts are so clear that reasonable
     minds could not differ can a trial court properly enter summary
     judgment.

Bayview Loan Servicing, LLC v. Wicker, 163 A.3d 1039, 1043-44

(Pa.Super. 2017) (citation omitted); Pa.R.C.P. 1035.2. In addition, “[w]here

the non-moving party bears the burden of proof on an issue, [she] may not

rely on [her] pleadings or answers to survive summary judgment.” Wicker,

supra at 1044 (citation omitted). Moreover, the “[f]ailure of a non-moving

party to adduce sufficient evidence on an issue essential to [her] case and

on which [she] bears the burden of proof establishes the entitlement of the

moving party to judgment as a matter of law.”       Id.   In this setting, a

mortgage holder 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.” Bank of




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America, N.A. v. Gibson, 102 A.3d 462, 465 (Pa.Super. 2014) (citation

omitted).

      Ms. Dorrin contests the trial court’s grant of summary judgment in

favor of First Horizon primarily on her assertion that this dispute was the

result of a simple misunderstanding regarding the status of her homeowner’s

insurance. She does not challenge the amount of principal owed, nor that

she has ceased making mortgage payments. Appellant’s brief at 14 (stating

“Of course [Ms. Dorrin] hasn’t made payments. They would not accept them

until she paid for insurance she already had and had never let lapse.”). In

addition, Ms. Dorrin concedes that, pursuant to the terms of the mortgage,

Nationstar was permitted to obtain insurance on her behalf if she failed to

maintain homeowner’s insurance. Id. at 5 (citing Mortgage, 12/22/05, at ¶

5 (“If Borrower fails to maintain any of the coverages described above,

Lender may obtain insurance coverage, at Lender’s option and Borrower’s

expense.”)).

      Instead, Ms. Dorrin relies on admissions First Horizon made during

discovery, which indicated, inter alia, that in March of 2013, State Farm

informed Nationstar that Ms. Dorrin’s homeowner’s insurance had not

lapsed, and that Nationstar refused to accept her mortgage payments

following this notice. Ms. Dorrin maintains that, in light of the evidence that

her insurance policy never lapsed, “there never was a triggering event

allowing the lender to force place the homeowner’s insurance.” Appellant’s

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brief at 12.    As such, she concludes that Nationstar should not have

purchased insurance on her behalf, that her mortgage payments should not

have increased, and finally, Nationstar erred in refusing to accept her

mortgage payments.

      We find that, even when viewing the record in the light most favorable

to Ms. Dorrin as the non-moving party, the trial court did not err in granting

First Horizon’s cross-motion for summary judgment and denying her motion

for summary judgment. Instantly, the record reveals that First Horizon has

established a prima facie case to support mortgage foreclosure, as there is

no dispute that the mortgage is currently in default, that Ms. Dorrin has not

made a mortgage payment since May 2013, and that a definite principal is

still owed on the mortgage. Gibson, supra. Further, under the terms of

the mortgage, Nationstar “may return any payment or partial payment if the

payment or partial payments are insufficient to bring the Loan current.”

Mortgage, 12/22/05, at ¶ 1. Although, Ms. Dorrin alleged that she tendered

various payments, she did not allege that those payments satisfied her

outstanding debt, including fees and insurance premiums, owed on her

account.   Indeed, as noted above, Ms. Dorrin refused to tender premium

payments she claimed that she did not owe. Appellant’s brief at 14. Hence,

Nationstar was within its contractual rights to return those partial payments

since they were insufficient to bring the loan up to date.




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      The only question that remains is whether Nationstar’s purported

knowledge that Ms. Dorrin’s insurance had not lapsed as of March 2013

renders its conduct a breach of the mortgage agreement, and otherwise

excuses Ms. Dorrin from failing to make her mortgage payments from May

2013 until the present.

      In support of her position, Ms. Dorrin offered her own deposition and

the deposition of her State Farm agent, Sang Lee. Mr. Lee stated that at

some point in 2011, he and Ms. Dorrin discussed adding sinkhole coverage

to her policy. Mistakenly believing that Ms. Dorrin agreed to such coverage,

he added it to her policy, which increased her premium payment.           In

December 2012, Ms. Dorrin discovered Mr. Lee’s mistake when she learned

that she had not paid her premium in full. She contacted Mr. Lee, and he

began rectifying the error. Mr. Lee averred “[t]hat was resolved in March of

2013 . . . . Once that was removed, then [Ms. Dorrin] no longer had any

back premium that was due. Her homeowner’s policy would have been paid

retroactively in full without any lapse of coverage.” Deposition of Sang Lee,

8/23/14, at 7.      Nevertheless, he indicated that State Farm notified

Nationstar that Ms. Dorrin’s insurance had been cancelled due to her failure

to pay the full premium in August or September 2012, seven months prior to

the resolution of the matter.

      Mr. Lee also discussed a letter that he sent to Ms. Dorrin recounting

the issues she had faced with her policy, and “advising her that back on

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March 27, 2013, it was finalized that the managerial approval to give her

credit back to – retroactively back to December 21, 2011[.]” Id. at 9. That

letter also referenced another letter issued by State Farm stating that Ms.

Dorrin had continuous coverage dating back to 2005. Defendant’s Exhibit A,

unnumbered at 1.

       First Horizon countered Ms. Dorrin’s position by offering numerous

letters that Nationstar sent to her indicating that her insurance had lapsed

and requesting proof of insurance, as outlined above.         Of import herein,

there is no evidence of record that Ms. Dorrin provided Nationstar with proof

of her insurance until February 22, 2013.           However, at that time, Ms.

Dorrin’s proof of insurance did not cover the interval between November 21,

2012, and December 20, 2012.               Thus, she remained in breach of her

contractual obligations. As such, we find that Nationstar acted permissibly

pursuant to the terms of the mortgage agreement when it obtained

insurance for Ms. Dorrin’s property on February 16, 2013.

       Ms. Dorrin asserts that, as of March 2013, Nationstar knew she had

continuous coverage dating back to 2005.1 Even assuming this is true, First

____________________________________________


1 Neither the testimony of Mr. Lee, nor the letter provided by Ms. Dorrin,
established that Nationstar was apprised in March 2013 that she had
continuous coverage dating back to 2005. We assume this to be true based
on our standard of review, and First Horizon’s admissions during discovery.
Nonetheless, Mr. Lee’s testimony revealed that State Farm had resolved Ms.
Dorrin’s issues as of March 27, 2013, but did not indicate when he informed
(Footnote Continued Next Page)


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Horizon appended to its cross-motion for summary judgment evidence that,

as of April 4, 2013, Ms. Dorrin’s insurance policy had been cancelled.

Thereafter, Nationstar requested proof of ongoing insurance, which Ms.

Dorrin did not provide. Again, assuming Ms. Dorrin’s insurance issues were

resolved by that time, Ms. Dorrin should have been able to submit the

necessary evidence.        Instead, the record reveals that on May 4, 2013,

Nationstar again requested proof of insurance, and after Ms. Dorrin failed to

provide that proof, it again obtained insurance on her behalf. Therefore, we

find that Nationstar reasonably believed that Ms. Dorrin’s insurance lapsed

when it force-placed insurance on her mortgage on June 26, 2013. Hence, it

did not breach the terms of the mortgage in this regard, and there is no

basis to conclude that Ms. Dorrin was justified in failing to remit the

necessary mortgage payments.

      In summary, we find that, even when viewing the record in the light

most favorable to Ms. Dorrin as the non-moving party, there are no genuine

issues of material fact left to be resolved in this matter. The trial court did

not err in determining that First Horizon had proffered sufficient evidence

that Ms. Dorrin had defaulted on her mortgage obligations, and that
(Footnote Continued) _______________________

Nationstar of this fact. Further, although the letter Mr. Lee sent to Ms.
Dorrin references another letter that he purportedly sent to Nationstar
advising it that Ms. Dorrin had continuous coverage during the relevant
period, there is no indication when, or to whom, that letter was sent.
Moreover, the continuous coverage letter is not part of the certified record.



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Nationstar       had   acted   within   its   contractual   rights   in   force-placing

homeowner’s insurance on Ms. Dorrin’s property at her expense. Thus, no

relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/23/2018




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