J-A22041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FEDERAL NATIONAL MORTGAGE                        IN THE SUPERIOR COURT OF
ASSOCIATION, SUCCESSOR TO                              PENNSYLVANIA
CITIMORTGAGE, INC.,

                            Appellee

                       v.

MICHAEL P. GILES AND STEPHANIE J.
GILES,

                            Appellants                No. 961 MDA 2014


                 Appeal from the Judgment Entered May 5, 2014
                  in the Court of Common Pleas of Berks County
                          Civil Division at No.: 12-20787


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 06, 2015

        Appellants, Michael P. Giles and Stephanie J. Giles, appeal from the

summary judgment entered in favor of Citimortgage, Inc. (Citimortgage),

predecessor-in-interest to Appellee, Federal National Mortgage Association

(Fannie Mae), in this mortgage foreclosure action.1 We affirm.

        We take the relevant factual and procedural history of this case from

the trial court’s September 5, 2014 opinion and our independent review of

the record.      On May 23, 2003, Appellants executed a mortgage and

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Mr. Giles is an attorney and he represents himself and Mrs. Giles in this
appeal.
J-A22041-15



promissory note on a property located at 939 Wayne Avenue, Wyomissing,

Pennsylvania, obligating them to repay the loan to First Horizon Home Loan

Corporation d/b/a First Horizon Lending Center on a monthly basis.      The

mortgage was then assigned to several different companies, and ultimately

was assigned to Citimortgage on March 17, 2010.

     Appellants stopped making payments on the mortgage in or about

November 2010. After they received pre-foreclosure notice pursuant to Act

91, see 35 P.S. §§ 1680.401c-1680.412c, Appellants applied for assistance

under the Homeowners’ Emergency Mortgage Assistance Loan Program on

March 17, 2011. They were denied assistance under the program on May

11, 2011.

     On September 10, 2012, Citimortgage filed a complaint in mortgage

foreclosure against Appellants, averring that the mortgage was in default

and they owed payments for the amounts due from December 1, 2010,

forward.    In their February 6, 2013 answer with new matter, Appellants

responded to the material portions of the complaint with general denials and

a claim that they are without sufficient knowledge or information with

respect to the amounts due on the mortgage.       On November 21, 2013,

Citimortgage filed its motion for summary judgment.      Appellants filed a

response on December 20, 2013, claiming in pertinent part that the parties

had not engaged in any discovery and that they required at least 120 days




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to conduct it.2 On May 5, 2014, after oral argument, the trial court granted

Citimortgage’s motion for summary judgment and entered an in rem

judgment against Appellants in the amount of $180,533.78, plus interest

and costs.

       Appellants timely appealed.         Pursuant to the trial court’s order, they

filed a timely concise statement of errors complained of on appeal on June

30, 2014.     See Pa.R.A.P. 1925(b).           The trial court entered an opinion on

September 5, 2014. See Pa.R.A.P. 1925(a).3

       Appellants raise one issue for our review:

       A. Whether the trial court committed an error of law, or abused
       its discretion, when it granted [Citimortgage’s] motion for
       summary judgment, by failing to apply the correct standards to
       consider said motion, and failing to consider the entire record
       before it?

(Appellants’ Brief, at 4).




____________________________________________


2
  Appellants attached a copy of a letter signed by Mr. Giles addressed to
counsel for Citimortgage dated May 17, 2013, in which he advised that he
would like to conduct discovery and stated that he “will request documents
from [Citimortgage] at the time [he] notice[s] the deposition [of the
company’s document control officer].” (Exhibit A to Appellants’ Response to
Citimortgage’s Motion for Summary Judgment, 5/17/13, at 1). However,
Appellants made no formal discovery requests. (See Trial Court Opinion,
9/05/14, at 5).
3
 After Appellants filed this appeal, Fannie Mae was substituted as Appellee
and as the plaintiff in the mortgage foreclosure action. (See Appellee’s
Brief, at 2 n.1).



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     Our standard of review of an order granting a motion for summary

judgment requires us to determine whether the trial court committed an

error of law or abused its discretion. See Cigna Corp. v. Executive Risk

Indem., Inc., 111 A.3d 204, 210 (Pa. Super. 2015).

           [O]ur scope of review is plenary, and our standard of
     review is the same as that applied by the trial court. . . . An
     appellate court may reverse the entry of a summary judgment
     only where it finds that the lower court erred in concluding that
     the matter presented no genuine issue as to any material fact
     and that it is clear that the moving party was entitled to a
     judgment as a matter of law. In making this assessment, we
     view the record in the light most favorable to the nonmoving
     party, and all doubts as to the existence of a genuine issue of
     material fact must be resolved against the moving party. As our
     inquiry involves solely questions of law, our review is de novo.

            Thus, our responsibility as an appellate court is to
     determine whether the record either establishes that the
     material facts are undisputed or contains insufficient evidence of
     facts to make out a prima facie cause of action, such that there
     is no issue to be decided by the fact-finder. If there is evidence
     that would allow a fact-finder to render a verdict in favor of the
     non-moving party, then summary judgment should be denied.

Bastian v. Sullivan, 117 A.3d 338, 344 (Pa. Super. 2015) (citation

omitted).

       In their issue on appeal, Appellants challenge the trial court’s entry of

summary judgment, arguing that the record reflects they raised several

issues of material fact. (See Appellants’ Brief, at 6-8). They maintain that

the court ignored the record before it, that it failed to apply correct

standards, and that it erroneously concluded that their responses to the




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averments in the complaint constituted general denials. (See id. at 7-8, 14;

see also Trial Ct. Op., at 2, 4). We disagree.

            . . . A party bearing the burden of proof at trial is entitled
     to summary judgment “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[.]” Pa.R.C.P. No. 1035.2(1). In
     response to a summary judgment motion, the nonmoving party
     cannot rest upon the pleadings, but rather must set forth specific
     facts demonstrating a genuine issue of material fact. Pa.R.C.P.
     No. 1035.3.

             The holder of a mortgage has the right, upon default, to
     bring a foreclosure action. 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.

                              *    *    *
             . . . General denials [to averments in a complaint]
     constitute admissions where . . . specific denials are required.
     See Pa.R.C.P. No. 1029(b).      Furthermore, “in mortgage
     foreclosure actions, general denials by mortgagors that
     they are without information sufficient to form a belief as
     to the truth of averments as to the principal and interest
     owing [on the mortgage] must be considered an
     admission of those facts.” First Wis. Tr. Co. v. Strausser, .
     . . 653 A.2d 688, 692 ([Pa.Super.] 1995); see Pa.R.C.P. No.
     1029(c) Note. . . .

Bank of America, N.A. v. Gibson, 102 A.3d 462, 464-67 (Pa. Super.

2014), appeal denied, 112 A.3d 648 (Pa. 2015) (case citation omitted;

emphasis added) (determining entry of summary judgment proper where

appellant   effectively   admitted   material   allegations   of   complaint   with

ineffective denials and improper claims of lack of knowledge).                 In a

mortgage      foreclosure      action,     “[u]nquestionably,       apart      from

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J-A22041-15



appellee[/mortgagee], appellants[/mortgagors] are the only parties who

would have sufficient knowledge on which to base a specific denial.”

Strausser, supra at 692 (citation omitted).

      Here, after review of the record, we conclude that it belies Appellants’

contention that the trial court ignored issues of material fact and failed to

apply correct standards in granting summary judgment.          As noted above,

Appellants responded to the material portions of Citimortgage’s complaint

with general denials and a claim of lack of knowledge.         (See Appellants’

Answer with New Matter, 2/06/13, at 1 ¶¶ 5-6). They did not provide an

alternative accounting of their mortgage payments or explain why the

amount sought by Citimortgage was incorrect.         (See id.).   Therefore, we

agree with the trial court that Appellants in effect admitted the material

allegations of the complaint, and that they failed to set forth specific facts to

raise a genuine issue of material fact regarding the default.      See Gibson,

supra at 464-67. They were not entitled to rest simply on the pleadings.

See id. at 464.

      Insofar as Appellants contend that the trial court failed to consider the

lack of discovery, (see Appellants’ Brief, at 13), this contention is meritless

where they did not serve any formal requests for discovery during the

approximate nine-month period between their answer to the complaint and

Citimortgage’s motion for summary judgment.         See Strausser, supra at

695 (stating this Court unsympathetic to claim of no discovery before entry

of summary judgment in mortgage foreclosure action, observing “[i]f

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J-A22041-15



[appellant], who is an attorney, felt that discovery was so vital to his case,

then he could have taken many different steps to effectuate that goal.”).

      In sum, we conclude that the trial court did not err or abuse its

discretion in granting Citimortgage’s motion for summary judgment.          See

Cigna Corp., supra at 210. Accordingly, Appellants’ sole issue on appeal

does not merit relief.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2015




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