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NEW YORK GUARDIAN MORTGAGE CORPORATION v. ALBERT DIETZEL & MICHELE A. DIETZEL (04/23/87)

filed: April 23, 1987.

NEW YORK GUARDIAN MORTGAGE CORPORATION
v.
ALBERT DIETZEL & MICHELE A. DIETZEL, APPELLANTS



Appeal from the Order Entered March 26, 1986 in the Court of Common Pleas of Philadelphia County, Civil No. 4299 May Term 1985.

COUNSEL

Mary Jeffery, Philadelphia, for appellants.

Lawrence T. Phelan, Philadelphia, for appellee.

Cirillo, President Judge, and Rowley and Beck, JJ.

Author: Cirillo

[ 362 Pa. Super. Page 428]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County granting appellee's motion for summary judgment in an action in mortgage foreclosure. We affirm.

Appellant raises three issues for our review: (1) whether the trial court committed an error of law in granting plaintiff summary judgment and concluding that there were no material facts in dispute and that plaintiff was entitled to relief; (2) whether the trial court committed an error of law in concluding that plaintiff did not violate the provisions of 15 U.S.C. § 1601 et seq.; and (3) whether the trial court committed an error of law in concluding that plaintiff did not violate the provisions of 41 P.S. §§ 401 et seq.

[ 362 Pa. Super. Page 429]

It is axiomatic that in granting a motion for summary judgment, there must be no genuine issue of material fact and as a matter of law the moving party is entitled to prevail. Furthermore, the record is viewed in the light most favorable to the non moving party. Fox v. State Farm Mutual Auto Insurance Company, 322 Pa. Super. 96, 469 A.2d 199 (1983).

With regard to the first issue raised by appellants, we find that the trial court did not err in granting summary judgment as to all issues raised in appellee's motion. It is clear that the court was correct in granting summary judgment as to the liability issue. Appellants, in their answer to appellee's complaint, admitted that they were behind in their mortgage payments. Likewise, appellants' general denial that they "are without information sufficient to form a belief as to the truth of" appellee's averment as to the principal and interest due is to be considered an admission of those facts. See Pa.R.C.P. 1029(c); Cercone v. Cercone, 254 Pa. Super. 381, 386 A.2d 1 (1978). Unquestionably, apart from appellee, appellants are the only parties who would have sufficient knowledge on which to base a specific denial.

Appellants also claim that there is a genuine issue of material fact as to the attorney fees, costs of suit and title search. In support of this claim, appellants refer to the denial of these items in their answer to appellee's complaint. This case is very similar to the recent case of Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986). In Stein, we stated that appellant's "reliance upon the pleadings is misplaced. Pa.R.C.P. 1035(d) specifically provides that they may not rest upon the averments contained in the pleadings. In order to properly raise a genuine issue of fact, the Steins had the burden to present 'facts' by counter-affidavits, depositions, admissions, or answers to interrogatories". 357 Pa. Superior Ct. at 292, 515 A.2d at 982-83.

Here, as in Stein, appellants offered nothing to contradict appellee's claim except the denial ...


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