J-A12019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 DEUTSCHE BANK NATIONAL TRUST            :   IN THE SUPERIOR COURT OF
 COMPANY, AS TRUSTEE IN TRUST            :        PENNSYLVANIA
 FOR THE REGISTERED HOLDERS OF           :
 MORGAN STANLEY ABS CAPITAL I            :
 TRUST 2004-HE6, MORTGAGE PASS-          :
 THROUGH CERTIFICATES, SERIES            :
 2004-HE6                                :
                                         :
                                         :   No. 2677 EDA 2017
              v.                         :
                                         :
                                         :
 KENT M. OZMAN A/K/A KENT OZMAN          :
                                         :
                   Appellant             :

                Appeal from the Order Entered July 21, 2017
           In the Court of Common Pleas of Northampton County
                Civil Division at No(s): C-48-CV-2014-7396


BEFORE: BOWES, J., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                            FILED AUGUST 22, 2018

     Kent M. Ozman a/k/a Kent Ozman appeals from the order entered on

July 21, 2017, in the Court of Common Pleas of Northampton County. The

court granted Deutsche Bank National Trust Company, as Trustee in Trust for

the Registered Holders of Morgan Stanley ABS Capital I Trust 2004-HE6,

Mortgage Pass-Through Certificates, Series-HE6’s (“Deutsche Bank’s”) motion

for summary judgment against Ozman in a mortgage foreclosure action. On

appeal, Ozman argues summary judgment was improper due to the presence

of genuine issues of material fact. Based upon the following, we affirm.
J-A12019-18


       The trial court set out the relevant facts and procedural history as

follows:

       [Deutsche Bank] filed a Complaint in Mortgage Foreclosure
       (“Complaint”) against [Ozman] on August 2, 2014. [Deutsche
       Bank] averred, inter alia, that [Ozman] defaulted on the mortgage
       assigned to [Deutsche Bank] after failing to make scheduled
       monthly payments due on August 1, 2012, and each month
       thereafter. Compl. ¶ 6, 8. [Deutsche Bank] seeks an in rem
       judgment against [Ozman] in the amount of $379,790.16
       together with interest, late charges, fees, and other charges
       collectable under the mortgage, including attorney fees and costs.
       [Ozman] filed his Answer with New Matter to [Deutsche Bank’s]
       Complaint in Mortgage Foreclosure (“Answer with New Matter”) on
       May 29, 2015. [Deutsche Bank’s] Reply to [Ozman’s] New Matter
       was filed on August 3, 2015.

       On December 29, 2016, [Deutsche Bank] filed its Motion for
       Summary Judgment (the “Motion”), Memorandum of Law in
       Support of Summary Judgment, and Affidavit in Support of
       Summary Judgment. On January 24, 2017, [Ozman] filed his
       Response to the [Deutsche Bank’s] Motion for Summary Judgment
       in Mortgage Foreclosure and Brief of [Ozman] in Opposition to the
       Motion for Summary Judgment Filed on Behalf of the [Deutsche
       Bank].

Trial Court Opinion, 7/21/2017, at 2. On July 21, 2017, the court granted

Deutsche Bank’s motion for summary judgment.          Ozman filed this timely

appeal and submitted a Pa.R.A.P. 1925(b) concise statement of matters

complained of on appeal.

       On appeal, Ozman contends the trial court erred in granting Deutsche

Bank’s motion for summary judgment.1 See Ozman’s Brief at 10. He argues


____________________________________________


1In Ozman’s statement of questions involved, he lists three issues for review.
See Ozman’s Brief at 4. However, a review of his argument reveals he has
combined those claims into one issue. See id. at 10-23.

                                           -2-
J-A12019-18


summary judgment was improper because the trial court ignored the presence

of genuine issues of material fact. See id. at 15-18 (i.e., “[Ozman’s] answers

to the Complaint, with the New Matter asserted made it clear that there are

disputes of fact which negate the Bank’s ability to satisfy all elements of its

legal action.”). He also contends discovery should have been conducted, as it

would have produced documents “regarding the propriety of the loan from its

very inception, through [Deutsche Bank’s] ability to sue [Ozman] thereunder.”

Id. at 19.

      Our standard of review is well-settled:

      We review an order granting summary judgment for an abuse of
      discretion. Our scope of review is plenary, and we view the record
      in the light most favorable to the nonmoving party. 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. 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.

Bank of Am., N.A. v. Gibson, 102 A.3d 462, 464 (Pa. Super. 2014) (citations

omitted). Furthermore, we are guided by the following:

      [t]he 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.

Id. at 464-465 (citation omitted). “This is so even if the mortgagors have not

admitted the total amount of the indebtedness in their pleadings.”




                                     -3-
J-A12019-18


Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998),

appeal denied, 734 A.2d 861 (Pa. 1999).

       The trial court, in its Rule 1925(a) opinion adopting the reasoning from

its order granting summary judgment, provided a thorough and well-reasoned

discussion of Ozman’s arguments on appeal.          See Trial Court Opinion,

7/21/2017, at 2-7 (finding (1) Ozman never raised preliminary objections to

contest Deutsche Bank’s ability to sue; (2) Ozman’s argument that discovery

was necessary is “unsympathetic,” as he had not requested discovery in the

year and a half since pleadings had closed;2 (3) Ozman’s general denials to

Deutsche Bank’s accusations in his pleadings had the effect of admissions; 3

(4) summary judgment is proper where “the mortgagor admits that the

mortgage is in default and fails to sustain a cognizable defense to the claim;”4

(5) Ozman effectively admitted the mortgage was in default and did not

present a valid defense; and (6) the numerous exhibits attached to Deutsche




____________________________________________


2 See Trial Court Opinion, 7/21/2017, at 5, citing First Wisconsin Trust Co.
v. Strausser, 653 A.2d 688, 695 (Pa. Super. 1995) (holding defendant’s
argument that the lack of discovery bars summary judgment is
“unsympathetic,” as defendant did not request discovery in the two years
since the Answer was filed).

3 See id. at 6, citing Pa.R.C.P. 1029(d) (“A general denial or a demand for
proof ... shall have the effect of an admission.”).

4Id. at 3, citing Gateway Towers Condo Ass’n v. Krohn, 845 A.2d 855,
858 (Pa. Super. 2004).

                                           -4-
J-A12019-18


Bank’s motion adequately support the conclusion that Ozman’s mortgage was

in default).

      Our review of the record reveals ample support for the trial court's

conclusions. Accordingly, we adopt the reasoning of the trial court and affirm

its order in favor of Deutsche Bank.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/18




                                       -5-
                                                                 Circulated 08/03/2018 01:24 PM




   IN THE COURT OF COMMON PLEAS OF NORTHAMPTON COUNTY
              COMMONWEALTH OF PENNSYLVANIA
                      CIVIL DIVISION

DEUTSCHE BANK NATIONAL TRUST: NO: C-48-CV-2014-7396
COMPANY, AS TRUSTEE, IN TRUST :
FOR THE REGISTERED HOLDERS
OF MORGAN STANLEY ABS
CAPITAL I TRUST 2004-HEG,
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2004-HEG,                .. ,- ..--. �-'
                                                              •....".·          !:":-:,
                                                                           r•
                                                              .-.:
                                                              -"
                  Plaintiff                                   ........   �--,   (.. -
                                                                                c:.:
                                                                                r": ..
           v.
KENT M. OZMAN a/k/a KENT                                                                  � .,.,·::-·r,

OZMAN,                                                                                    �·-'-""




                  Defendants.



                         .r:
                              ORDER OF COURT

     AND NOW, this                    of July, 2017, upon consideration of

Plaintiff's, Deutsche Bank National Trust Company, as Trustee, in trust for the

registered holders of Morgan Stanley ABS Capital I Trust 2004-HE6, Mortgage

Pass-Through Certificates, Series 2004-HE6 ("Plaintiff"), Motion for Summary

Judgment, Memorandum of Law in Support of Summary Judgment, and

Affidavit in Support of Summary Judgment, and Defendant's, Kent M. Ozman

a/k/a Kent Ozman ("Defendant"), Response to the Plaintiff's Motion for

Summary Judgment in Mortgage Foreclosure and Brief of Defendant, Kent M.

Ozman, in Opposition to the Motion for Summary Judgment Filed on Behalf of

the Plaintiff, it is hereby ORDERED that Plaintiff's Motion for Summary

Judgment is GRANTED.
                                          ···-·-- -··- -----·-····· -- ···--   ---· -· - -···   �.   ··-. --·---- ---   ------
                         STATEMENT OF REASONS

   I. Factual Background and Procedural History

      Plaintiff filed a Complaint in Mortgage Foreclosure ("Complaint") against

Defendant on August 4, 2014.     Plaintiff averred, inter a!ia, that Defendants

defaulted on a mortgage assigned to Plaintiff after failing to make scheduled

monthly payments due on August 1, 2012, and each month thereafter.

Campi. �� 6, 8. Plaintiff seeks an in rem judgment against Defendants in the

amount of $379,79.0.16 together with interest, late charges, fees, and other

charges collectable under the mortgage, including attorney fees and costs.

Defendant filed his Answer with New Matter to Plaintiff's Complaint in

Mortgage Foreclosure ("Answer with New Matter,,) on May 29, 2015. Plaintiff's

Reply to Defendant's New Matter was filed on August 3, 2015.

      On December 29, 2016, Plaintiff filed its Motion for Summary Judgment

(the "Motlon"), Memorandum of Law in Support of Summary Judgment, and

Affidavit in Support of Summary Judgment. On January 24, 2017, Defendant

fil�d his Response to the Plaintiff's Motion for Summary Judgment in Mortgage

Foreclosure and Brief of Defendant, Kent M. -Ozman, in Opposition to the

Motion for Summary Judgment Filed on Behalf of the Plaintiff. The matter was

placed on the April 25, 2017, Argument List and was submitted on brief.

  II. Legal Standard

     After the relevant pleadings are closed, but within such time as to not

unreasonably delay trial, any party may move for summary judgment.


                                      2
Pa.R.C.P. 1035.2(1).    Summary judgment, in whole or in part, is proper

"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. 1035.2(1).     The moving

party bears the burden of proving that no genuine issues of material fact exist.

Burger v. Owens Illinois, Inc., 966 A.2d 611, 614 (Pa. Super. 2009).

Moreover, the record is viewed in the Jig ht most favorable to the non-movant.

New York Guardian Mortgage Corp. v. Dietzel, 524 A.2d 951, 952 (Pa. Super.

1987).   Thus, summary judgment is proper only when the uncontroverted

allegations in   the   pleadings,   depositions,   answers   to   interrogatories,

admissions of record, and submitted affidavits demonstrate that no genuine

issue of material fact exists, and that the moving party is entitled to judgment

as a matter of law. Burger, 966 A.2d at 614.

      Summary judgment is proper in an in rem mortgage foreclosure action

where the mortgagor admits that the mortgage is in default and fails to sustain

a cognizable defense to the claim. Gateway Towers Condo. Ass'n v. Krohn,

845 A.2d 855, 858 (Pa. Super .. 2004) (emphasis added). In an action for a

mortgage foreclosure, entry of summary judgment is proper if the mortgagors

admit that the mortgage is in default; that they have failed to pay interest on

the obligation; and that the recorded mortgage is in the specified amount.

Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa. Super. 1998) citing

Landau v. W. Pennsylvania Nat. Bank, 282 A.2d 335, 340 (Pa. 1971).


                                        3
--·   -- ..   ---- - -------------------------- --· ----- -· -- ·- -- -- -- ·--------------
              ·-    .. ··--···· .. _   .

Summary judgment is proper "even if the mortgagors have not admitted the

total amount of the indebtedness in the pleadings." Cunningham, 714 A.2d

at 1057.

        III.            Discussion

                   Plaintiff asserts that there is no genuine issue of material fact. Plaintiff

further argues that Defendant's Answer with New Matter admits or generally

denies the elements essential to its cause of action and fails to raise a

cognizable defense or state a claim upon which relief can be granted.

Defendant asserts that "no discovery has been commenced," thereby deeming

summary judgment procedurally improper. Id. at 3. Alternatively, Defendant

argues that his Answer with New Matter does not effectively admit all material

facts but, rather, "make[s] it clear that there are disputes of fact which negate

the Plaintiff's ability to satisfy all elements of its legal action." Br. Def. 6.

                   On       the        issue of discovery,   Defendant   maintains   that "through

discovery," he "would seek production of documents within the exclusive

possession of [Plaintiff] ... - regarding the propriety of the loan from its very

inception, through the present Plaintiff's ability to sue the Defendant

thereunder." Br. Def. 9. We first note that Defendant never raised preliminary

objections to contest Plaintiff's ability to sue Defendant and that the record is

devoid any documentation to suggest, for example, that Plaintiff failed to

entertain discovery requests. We further note that Plaintiff's Motion was filed

on December 29, 2016, over a year and a half from the date Defendant filed


                                                             4
his Answer with New Matter. Moreover, Defendant has been represented by

the same counsel since the filing of his Answer with New Matter. When faced

with a set of procedural facts remarkably similar to the present case, our

Superior Court responded that it was "unsympathetic," pointing to the fact

that nearly two years had passed from the date the defendant filed his answer.

First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 695 (Pa. Super. 1995).

Our Superior Court reasoned that if the defendant "felt that discovery was so

vital to. hlscase, then he could have taken many different steps to effectuate

that goal." Id. Likewise, we will not deny Plaintiff's Motion because Defendant

now asserts that discovery has not been conducted.1

      We turn to whether there remain any material facts remain. The key

paragraph of the Complaint is Paragraph 8, which avers the essential elements

required in a mortgage foreclosure action: that Defendant is in default because

Defendant failed .to make "payments of principal and interest due August 1,

2012, and rnonthlv thereafter." Campi. ,i 8. In his Answer with New Matter,

Defendant's response to Paragraph 8 is as follows:

      The allegation that the Mortgage is in default is a conclusion of
      law to which no response is required on the part of the Defendant.
      The allegation is, therefore, denied and, if relevant, strict proof
      thereof is demanded at trial.      Furthermore, for the reasons
      hereinafter set forth in Defendant's New Matter, the Mortgage is
      void and, thus, unenforceable against the Defendant.



      1  We also recognize that the Complaint contains many exhibits, including but
not limited to a promissory note between Defendant and the original lender, a deed
to the property at issue, and documentation of the assignment of the mortgage at
issue to Plaintiff.
                                         5
Answer � 8. Reviewing a similarly styled response in an answer, our Superior

Court reasoned, "Such denial is not specific because it fails to allege payments

made under the Mortgage and not otherwise stated in the Complaint." Wells

Fargo Bank, N.A. v. Costantino, No. 607 MDA 2016, 2017 WL 1165254, at *5

(Pa. Super. Ct. Mar. 28, 2017).     It is well-settled that a general denial or

demand for proof "shall have the effect of an admission." Pa.R.C.P. 1029(b).

While the phrase "in default" is arguably a conclusion of law to which no

responsive .. pleading is required, see Pa. R.C.P. 1029(d), the substance of

Plaintiff's Paragraph 8 are the details to which Defendant offers no response:

that Defendant failed to make "payments of principal and interest due August

1, 2012, and monthly thereafter."      Accordingly, Defendant has effectively

admitted that the mortgage in question was in default and that they have

failed to pay interest on the obligation.   Although Defendant's Answer with

New Matter also purports to "specifically den[y] that the sums set forth [in the

Complaint] ... are accurate statements," this does not bar the entry of

summary·judgment. See Cunningham, 714 A.2d at 1057 .

     . Finally, Defendant's insistence that "Plaintiff's Motion for Summary

Judgment relies entirely on its own unsupported declarations" is inaccurate.

Br. Def. 11.   Attached to Plaintiff's Complaint are a number of documents,

including a Note, mortgage agreement, and Corporate Assignment of

Mortgage, and filed with Plaintiff's Motion is an Affidavit in Support of Motion

for Summary Judgment, which is signed by Laura Lynn Dyson, who is


                                       6
identified as Document Control Officer of Select Portfolio Servicing, Inc., acting

as attorney-in-fact for Plaintiff. Moreover, as discussed above, Defendant has

effectively admitted all material facts. Thus, we grant Plaintiff's Motion.

                                                  BY THE COURT:
                                                  s��-




                                        7
