                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2005

Estate Ortlieb v. Hudson United Bank
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2042




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                                           NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


             Nos. 04-2042 and 04-2261


     *THE ESTATE OF HENRY A. ORTLIEB,

                                           Appellant in No. 04-2042

                         v.

           HUDSON UNITED BANK,
       SUCCESSOR TO JEFFERSON BANK;
             JEFFERSON BANK


      *THE ESTATE OF HENRY A. ORTLIEB

                         v.

           HUDSON UNITED BANK,
       SUCCESSOR TO JEFFERSON BANK;
             JEFFERSON BANK

                              Hudson United Bank,

                                           Appellant in No. 04-2261

*Amended pursuant to the Clerk’s Order dated 11/24/04


   On Appeal from the United States District Court
      for the Eastern District of Pennsylvania
             (D.C. Civ. No. 03-04210)
       Honorable Marvin Katz, District Judge
                        Submitted under Third Circuit LAR 34.1(a)
                                     March 7, 2005

    BEFORE: SCIRICA, Chief Judge, and ROTH and GREENBERG, Circuit Judges

                                  (Filed: March 30, 2005)


                               OPINION OF THE COURT


GREENBERG, Circuit Judge.

       This matter comes on before this court on appeals pursuant to 28 U.S.C. § 1291 in

this diversity of citizenship action under 28 U.S.C. § 1332 brought by decedent Henry

Ortlieb against Jefferson Bank and Hudson United Bank, its successor, together called the

“Bank,” by reason of the Bank’s failure to mark satisfied certain mortgages that Ortlieb

granted the Bank on property in Pennsylvania and on property in New Jersey. It is

undisputed that Ortlieb paid the debt the mortgages secured in full and was entitled to

have them marked satisfied as he originally requested in 2000. He brought this action

with respect to the Pennsylvania property under the Pennsylvania mortgage satisfaction

statute, Pa. Stat. Ann. tit. 21, §§ 681-82 (West 2001), and with respect to the New Jersey

property under that state’s common law for slander of title. The Bank counterclaimed for

attorney’s fees on the basis of loan documents Ortlieb had signed which included a

provision for it to recover its attorney’s fees from him in certain circumstances.

       After the issue was joined the parties brought cross-motions for summary

judgment. The district court held in a memorandum opinion dated April 5, 2004, that

                                              2
judicial estoppel predicated on Ortlieb’s failure to disclose the claims against the Bank in

his bankruptcy proceedings and the statutes of limitations in Pennsylvania and New

Jersey barred his claims. The court entered an order on April 5, 2004, in accordance with

the memorandum opinion.

         Subsequently, the Bank moved for attorney’s fees but the district court denied that

motion and dismissed the counterclaim by an order dated April 9, 2004, entered April 12,

2004. Though the court did not issue an opinion accompanying the order, in the order it

explained that the contracts for attorney’s fees and costs “arise upon an action for

mortgage foreclosure and certain other obligations, not the defense of the claims in this

case. . . . The claims in this case do not involve the enforcement of lender’s rights. Nor

do the indemnification or other provisions or the statute quoted in the Motion apply.” 1

App. at 685. Ortlieb appealed from the order of April 5, 2004, and the Bank filed a

separate appeal from the order of April 12, 2004. Subsequently, Ortlieb died and his

estate was substituted for him as a party. We adjudicate both appeals in this opinion

exercising plenary review. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.

1995).

         After our review of this matter we are in substantial agreement with the district

court on the statutes of limitations issue and will affirm on the estate’s appeal on that




         1
             The Bank does not rely on a statute for attorney’s fees on this appeal.

                                                  3
basis.2 We do note, however, that the district court, when addressing Ortlieb’s 2002

requests for satisfaction of the mortgages, indicated that the Bank “complied with each

such request by rendering a satisfaction piece within the 45-day window provided by the

Pennsylvania Mortgage Satisfaction statute. [Ortlieb’s] claims based on these requests

fail as a matter of law.” Op. at 19-20.

       In its brief the estate does not challenge this finding beyond indicating in its

statement of facts that the Bank’s “failure to respond to [a] request [in 2002 from a title

insurance company employee for satisfactions of the mortgages] is the third statutory

violation.” Appellant’s br. at 5. The estate, however, then does not go on to argue the

point and, indeed, later in its brief states that:

       Moreover, the District Court held that the requests made in 2002, although
       complied with by the Bank, do not renew earlier claims based on requests in
       2000 to satisfy. We contend that the District Court, in so holding, has
       erroneously applied the [Pantuso Motors, Inc. v. Corestates Bank, N.A., 745
       A.2d 614 (Pa. Super. Ct. 1999), rev’d on other grounds, 798 A.2d 1277 (Pa.
       2002)] court’s interpretation of 21 P.S. § 682.

Appellant’s br. at 14. We take this statement as eschewing a challenge to the district

court‘s holding with respect to the Bank’s 2002 compliance.

       Finally, on the 2002 compliance point we observe that in its answering brief the

Bank indicates that the estate “seems implicitly to be suggesting an alternative statute-of-

limitations argument - namely, that the 2002 requests, even though admittedly complied



       2
       We do not take a position on the judicial estoppel basis of the district court’s
opinion.

                                                 4
with by Hudson in a timely fashion, somehow had the effect, under Pantuso, of reviving

the statute of limitations for the requests dating from the Fall of 2000.” Appellee’s br. at

32. In its reply brief the estate does not deny that it acknowledges that the Bank complied

with the 2002 requests.

       The 2002 proceedings are crucial for unless they revived a cause of action derived

from the Bank’s failure to comply with Ortlieb’s 2000 requests for satisfactions this

action cannot be timely because he brought it more than two years after the expiration of

the 45-day period within which the Bank could comply in a timely way with Ortlieb’s

2000 requests. We reach this conclusion because we do not believe that the Pennsylvania

legislature could have intended that a mortgagor could breathe life into a claim that the

statute of limitations otherwise barred by making a later request for a satisfaction if, as is

the case here, the mortgagee properly complies with the request.

       We recognize that Ortlieb made his 2002 requests for satisfaction within the two-

year period within which he could have brought a timely action predicated on the Bank’s

noncompliance with his 2000 requests. Nevertheless under the estate’s theory the

circumstance that he brought this action within that period would not matter as, in its

view, the Superior Court in Pantuso held that “the statute does not begin to run until the

request for satisfaction has been met, that is, when satisfaction of a mortgage has been

entered.” Appellant’s br. at 14. Under this theory a mortgagor could bring his action at

any time until the mortgage has been satisfied.



                                               5
       The statute of limitations in this case is 42 Pa. Cons. Stat. Ann. § 5524(5) (West

2004) which provides that an “action upon a statute for a civil penalty or forfeiture”

“must be commenced within two years.” Surely the estate’s theory that somehow the

proper proceedings in 2002 made timely an otherwise barred claim, is inconsistent with

the statute because he did not bring this action until more than two years following the

wrongful conduct of which it complains.3

       We also affirm on the Bank’s appeal as we agree with the succinct reasons the

district court set forth in its April 12, 2004 order denying attorney’s fees and costs. We

add only that there is no doubt but that the Bank acted wrongly in this case and is

fortunate to be saved from significant liability by its statute of limitations defense. We

cannot believe that the parties intended when executing the loan documents that in

circumstances such as those here the Bank could recover its attorney’s fees from Ortlieb

in litigation it spawned by its wrongful conduct toward him.

       The orders of April 5, 2004, and April 12, 2004, will be affirmed. The parties will

bear their own costs on these appeals.




       3
        While we do not think that we misread the Superior Court’s opinion in Pantuso, if
we do we nevertheless would reach the same result because even though we must
consider that decision we are not bound by it. See 2-J Corp. v. Tice, 126 F.3d 539, 541
(3d Cir. 1997).

                                              6
