J-S54019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MIDFIRST BANK                                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                     v.

JEFFREY A. STACEY AND LISA RENE
STACEY A/K/A LISA R. STACEY

APPEAL OF: LISA RENE STACEY                          No. 637 MDA 2014


              Appeal from the Judgment Entered March 3, 2014
               In the Court of Common Pleas of Snyder County
                    Civil Division at No(s): CV-0132-2013


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                          FILED AUGUST 28, 2014

      Appellant, Lisa Rene Stacey, appeals from the March 3, 2014 in rem

judgment entered in favor of Appellee, Midfirst Bank (Midfirst), following the



review, we affirm.

      The trial court summarized the relevant factual history of this case as

follows.

                  [On March 28, 2013, Midfirst] commenced this
            action in mortgage foreclosure[ against Appellant
            and her estranged husband, Jeffrey A. Stacey
            (Defendant Stacey)]. In the [a]mended [c]omplaint,
            Midfirst alleges the following: a) [Defendant Stacey
            and Appellant] are the owners of real property
            situated on 5351 Troxelville Road, Beavertown,
            Snyder County; b) [o]n or about December 6, 2007,
            [Appellant], individually and as power of attorney for
            Defendant [] Stacey executed and delivered a
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            [m]ortgage [n]ote and a real estate [m]ortgage in
            the sum of $129,972.00 to USA Home Loans, Inc.; c)
            the land subject to the [m]ortgage is the Beavertown
            property referenced above; d) [e]ffective December
            1, 2008, Midfirst is the assignee of the real estate
            mortgage; e) [Appellant and Defendant Stacey] have
            defaulted on the mortgage [by] having failed to
            remit the installment payment due on September 1,
            2012 and all subsequent installments; f) [t]he
            amount due is $137,223.98 which includes an unpaid
            principal balance, interest, late charges, escrow

            Appellant and Defendant Stacey] the required Act 6
            Notice of Intention to Foreclose and accelerate loan
            balance on January 14, 2013; h) the [m]ortgage is
            not subject to the notice provisions of Pennsylvania
            Act No. 91 of 1983; and i) [Appellant and Defendant
            Stacey] are not members of the Armed Forces.

Trial Court Opinion, 3/3/14, at 1-2.

      On December 30, 2013, Midfirst filed a motion for summary judgment

against Appellant.   By affidavit, Midfirst established the amounts of the

unpaid principal, interest, escrow deficit, late charges, property inspection




judgment motion and entered an in rem judgment in favor of Midfirst in the

amount of $143,549.92, together with interest calculated at the rate of




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$25.33 per diem from December 1, 2013. On April 1, 2014, Appellant filed a

timely notice of appeal.1

       On appeal, Appellant raises the following issues for our review.

              1.
                     judgment in error where Appellant [] did have
                     an issue of arguable merit, namely that
                     Defendant [] Stacey was obligated to pay on
                     the mortgage in issue and [Appellant] was not,
                     based on a separate order?

              2.
                     judgment in error, as Appellant [] contended
                     the award of legal fees and there had been no
                     determination that those fees were reasonable
                     or customary?



       We begin by noting our well-settled standard and scope of review.



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

an error of law[,] and our scope of revie                   Petrina v. Allied

Glove Corp., 46 A.3d 795, 797-798 (Pa. Super. 2012) (citations omitted).



____________________________________________


1
   On April 2, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b) within 21 days. Appellant complied with this
order by filing a concise statement on April 22, 2014. In lieu of filing a
formal Rule 1925(a) opinion, the trial court indicated on April 29, 2014, that
it would be relying on the reasoning set forth in its March 3, 2014 opinion
                                                                Appellant filed
her appellate brief on June 23, 2014.



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all doubts as to the existence of a genuine issue of material fact must be

                                            Barnes v. Keller, 62 A.3d 382,

385 (Pa. Super. 2012), citing Erie Ins. Exch. v. Larrimore, 987 A.2d 732,



issue as to any material fact and it is clear that the moving party is entitled

                                                                             Id.

      The   rule    governing   summary     judgment   has   been      codified    at

Pennsylvania Rule of Civil Procedure 1035.2, which states as follows.

            Rule 1035.2. Motion

            After the relevant pleadings are closed, but within
            such time as not to unreasonably delay trial, any
            party may move for summary judgment in whole or
            in part as a matter of law

                    (1) 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, or

                    (2) 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 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.

Pa.R.C.P. 1035.2.

            [O]ur 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

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              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.

Babb v. Ctr. Cmty. Hosp., 47 A.3d 1214, 1223 (Pa. Super. 2012) (citations

omitted), appeal denied, 65 A.3d 412 (Pa. 2013), citing Reeser v. NGK N.

Am., Inc., 14 A.3d 896, 898 (Pa. Super. 2011), quoting Jones v. Levin,

940 A.2d 451, 452 454 (Pa. Super. 2007) (internal citations omitted).

       Initially, Appellant argues that the trial court committed an error of law

when it found no material issues of fact existed to preclude the grant of

                                                                        at 7-8.

Specifically, Appellant asserts that a December 22, 2010 support order

established between her and Defendant Stacey raised a factual issue that

mandated a trial. Id.; see also

Judgment, 1/27/14, Exhibit A.2

                         in rem

pay a debt, summary judgment is proper where the [mortgagor] admits that

[s]he had failed to make the payments due and fails to sustain a cognizable


____________________________________________


2
                                                            [E]ffective
September 27, 2010, there is no child support awarded at this time;
however, [] Defendant [Stacey] shall continue to make the mortgage
payments on the marital home in the amount of $1,065.91 directly to the

Exhibit A.



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Krohn, 845 A.2d 855, 858 (Pa. Super. 2004), citing First Wis. Trust Co. v.

Strausser, 653 A.2d 688, 694 (Pa. Super. 1995).              Herein, Appellant



[]1,

                                                                     see also

Strausser, supra

are without information to form a belief as to the truth of averments as to

the principal and interest owning [within a mortgage foreclosure action]
                                                         3
                                                             Based upon this

admission, summary judgment in favor of Midfirst is appropriate unless

Appellant can sustain a cognizable defense to the mortgage foreclosure

action. See Krohn, supra.

       Appellant presently alleges she is under no obligation to pay the

subject mortgage because of the support order issued by the family law

division of the Snyder Coun

7-



[the support order] should have allowed her to escape summary judgment

                                                 However, we have previously

____________________________________________


3

contains pagination. Therefore, we have assigned each page within these
pleadings a sequential page number for ease of reference.



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under the mortgage], and that the mortgagee should collect from that other

party before attempting to collect from this mortgagor, is a conclusion of law

which will not raise a genuine issue of a material fact in order to preclude

                                                               Strausser, supra at

                                                     Defendant Stacey was liable for




entitlement to summary judgment.               See id.                          first

claim fails.

       Appellant next contends the trial court erred when it awarded



                                                           4
                                                                                   -

9.

       It is well settled t

                                                          Citicorp Mortgage, Inc.

                                                            , 662 A.2d 1120, 1123

                                                                egal fees by looking

at the reasonableness of the award within the confines of the circumstances
____________________________________________


4



of $547.50.      See
Affidavit of Kinders.



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of the particular case. Id., citing Fed. Land Bank of Baltimore v. Fetner,

410 A.2d 344, 347 (Pa. Super. 1979), cert. denied, Fetner v. Fed. Land

Bank of Baltimore, 446 U.S. 918 (1980). Our Court has previously held



foreclosure actions. Id.

awards following the grant of summary judgment in favor of a mortgagee.

See Citicorp, supra.

     Within this appeal, Appellant concedes that her agreement with




engage in such a fee analysis without conducting a trial. Id. Specifically,



work that was extended against her estranged husband[, Defendant

          Id. Despite this assertion, Appellant sets forth no further facts to



reasonable and customary. See id.




of the principal balance, to wit, $6,163.9

Judgment, 12/30/13, at 2. However, through an affidavit of a Midfirst Vice

President, Matt Kinders, the mortgagee swore that the legal fees it incurred


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as of December 19, 2013, totaled $3,050.00, consisting of foreclosure fees

of $1,300 and litigation fees of $1,750.00 (10 hours at $175.00 per hour).




by the mortgagee, i.e.

outstanding balance, we discern no error.   See Citicorp, supra.    Thus,




merit. Therefore, we affirm the March 3, 2014 judgment.

     Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2014




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