J-A08045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DEUTSCHE BANK NATIONAL TRUST               :   IN THE SUPERIOR COURT OF
    COMPANY, AS TRUSTEE FOR                    :        PENNSYLVANIA
    MORGAN STANLEY ABS CAPITAL I               :
    INC. TRUST 2005-HE7, MORTGAGE              :
    PASS-THROUGH CERTIFICATES,                 :
    SERIES 2005-HE7                            :
                                               :
                                               :
               v.                              :   No. 1667 EDA 2016
                                               :
                                               :
    ERIC BROITMAN, ET UX.                      :

                        Appeal from the Order March 24, 2016
                    In the Court of Common Pleas of Bucks County
                          Civil Division at No(s): 2014-03469


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

MEMORANDUM BY STEVENS, P.J.E.:                            FILED APRIL 28, 2017

        Appellants Eric and Debra Broitman appeal the order of the Court of

Common Pleas of Bucks County granting summary judgment in favor of

Appellee Deutsche Bank National Trust Company. We affirm.

        On May 16, 2014, Appellee filed a complaint in mortgage foreclosure,

alleging that Appellants were in default on their residential mortgage as they

had not made a payment since March 2011.                  Appellee stated in the

complaint that the total amount of charges and costs unpaid by Appellants

was approximately $412,000. Appellants filed a pro se answer in which they



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*
    Former Justice specially assigned to the Superior Court.
J-A08045-17



did not dispute the validity of the note or mortgage or the fact that they are

in default, but merely claimed they cannot find a loan modification.

      On December 15, 2015, Appellee filed a motion for summary

judgment, which included an updated calculation as to the charges owed by

Appellants with interest, resulting in a revised total of approximately

$463,000. In support of this calculation, Appellee submitted the notarized

affidavit of Kimberly Brown, a contract management coordinator with Ocwen

Loan Servicing, LLC, the servicer for Appellee. The affidavit reiterates and

attests to the updated calculations included in Appellee’s motion for

summary judgment. Appellants did not respond to the summary judgment

motion. On March 23, 2016, the lower court found that Appellants failed to

make a legal defense to Appellee’s claims, granted Appellee’s summary

judgment motion, and entered judgment in favor of Appellee in the amount

of $463,424.38.

      On May 12, 2016, Appellants obtained counsel and filed a motion for

leave to file an appeal nunc pro tunc alleging that they had no knowledge

that the lower court had entered summary judgment against them as their

mailing address had been incorrectly entered into the Prothonotary’s

electronic filing system. Appellants admitted receiving Appellee’s complaint

and other court filings which were personally served to Appellants’

residence, but denied receiving the order entering summary judgment. On




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May 23, 2016, the lower court granted Appellants’ motion to appeal nunc pro

tunc.1 This timely appeal followed.

       Appellants raise the following issues on appeal:

       1. Whether a document is an affidavit as defined by Pa.R.C.P.
          No. 76, when the document is not verified in accordance with
          Rule 76 and does not contain a notarial certificate that
          evidences that the document was signed on oath or
          affirmation?

       2. Whether an affidavit summarizing the contents of unidentified
          business records that are not attached to the affidavit can
          properly serve as the basis for the entry of summary
          judgment?

       3. Whether an affiant possesses the requisite personal
          knowledge regarding amounts claimed due on a mortgage
          loan, when the affiant states that her knowledge is solely
          based on reading certain unidentified business records?

       4. Whether summary judgment is properly entered in a
          mortgage foreclosure action, where the mortgagee does not
          produce any documentation demonstrating the amounts
          claimed due and relies instead on a testimonial affidavit?

Appellants’ Brief, at 2.

       Before reaching the merits of this appeal, we note that Appellee has

asked that this appeal be dismissed as Appellants failed to file a response to

Appellee’s motion for summary judgment.           Pennsylvania Rule of Civil

Procedure 1035.3(a) provides that the adverse party to a summary
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1
  Both trial courts and our Court have jurisdiction to determine whether an
appeal nunc pro tunc should be granted. Pierce v. Penman, 515 A.2d 948
(1986), appeal denied, 515 Pa. 608, 529 A.2d 1082 (1987) (upholding a trial
court's decision to grant an appeal nunc pro tunc).




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judgment motion “may not rest upon the mere allegations or denials of the

pleadings but must file a response within thirty days after service of the

motion.” Rule 1035.3(d) allows summary judgment to be entered against a

party who does not respond. As Rule 1035.3 plainly required Appellants to

respond to Appellee’s motion for summary judgment, we agree that

dismissal of this action on this ground is proper.

      Moreover, we also find all of Appellants’ claims on appeal are waived

as Appellants failed to raise these arguments before the lower court.        Our

rules of appellate procedure provide that “[i]ssues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”

Pa.R.A.P. 302(a). This Court has further provided:

      Issue preservation is foundational to proper appellate
      review....By requiring that an issue be considered waived if
      raised for the first time on appeal, our courts ensure that the
      trial court that initially hears a dispute has had an opportunity to
      consider the issue. This jurisprudential mandate is also grounded
      upon the principle that a trial court ... must be given the
      opportunity to correct its errors as early as possible. Related
      thereto, we have explained in detail the importance of this
      preservation requirement as it advances the orderly and efficient
      use of our judicial resources. Finally, concepts of fairness and
      expense to the parties are implicated as well.

Commonwealth v. Miller, 80 A.3d 806, 811 (Pa.Super. 2013) (quoting In

re F.C. III, 607 Pa. 45, 2 A.3d 1201, 1212 (2010) (citations omitted)).

      Based on the foregoing reasons, we affirm the trial court’s grant of

summary judgment.

      Order affirmed.



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J-A08045-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/28/2017




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