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UNION NATIONAL BANK LITTLE ROCK v. DARRELL COBBS AND DIAN M. COBBS. APPEAL DARRELL COBBS (12/18/89)

filed: December 18, 1989.

UNION NATIONAL BANK OF LITTLE ROCK, ASSIGNEE OF UNION MODERN MORTGAGE CORPORATION, ASSIGNEE OF THREE RIVERS MORTGAGE CORPORATION
v.
DARRELL COBBS AND DIAN M. COBBS. APPEAL OF DARRELL COBBS



Appeal from the Summary Judgment of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 88-14538.

COUNSEL

Daniel L. Haller, Aliquippa, for appellant.

Rodney Permigiani, Pittsburgh, for appellee.

Rowley, Melinson and Hoffman, JJ.

Author: Rowley

[ 389 Pa. Super. Page 510]

This is an appeal by Darrell Cobbs*fn1 from a summary judgment in favor of appellee, Union National Bank of Little Rock (Bank), in a mortgage foreclosure action. The only issue raised on appeal is whether or not the Bank's failure to comply with the mortgage servicing provisions contained in the Lenders Handbook [VA Pamphlet 26-7

[ 389 Pa. Super. Page 511]

(Revised)] can be raised as an equitable defense in a mortgage foreclosure action. We reverse the summary judgment and hold that such a failure may be asserted as an equitable defense.

The present action was commenced to foreclose a federally insured Veterans Administration (VA) mortgage which admittedly was in default. In new matter filed in response to the mortgage foreclosure complaint, appellant asserted that the Bank had commenced foreclosure proceedings without ascertaining the reason for the default, offering a forbearance plan, or recasting the mortgage. Appellant also asserted in new matter that a VA mortgagee who does not service a mortgage in accordance with the VA Lenders Handbook is barred on equitable grounds from foreclosing.

The trial court granted the Bank's motion for summary judgment on the basis that the Bank had no legally enforceable duty to comply with the VA Lenders Handbook. The trial court, however, did not address the issue, raised both in the trial court and in the instant appeal from the summary judgment, of whether despite the absence of a legal duty to comply with the VA Lenders Handbook's servicing provisions, the court may exercise its equitable powers and preclude the foreclosure of a mortgage where the servicing provisions have not been complied with.

Before proceeding to evaluate the merits of this appeal, we deem it necessary to emphasize the nature of the decision that we are called upon to review. In ruling upon a motion for summary judgment, "[i]t is not part of the court's function to decide issues of fact but solely to determine whether there is an issue of fact to be tried." Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 288, 515 A.2d 980, 981 (1986). The court deciding the motion must examine the record in the light most favorable to the nonmoving party and must resolve any doubt against the moving party. Id., 357 Pa. Superior Ct. at 288-89, 515 A.2d at 981. Only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is

[ 389 Pa. Super. Page 512]

    no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" may summary judgment properly be granted. Pa.R.C.P. 1035(b), quoted in Washington Federal v. Stein, supra. In the present case, the trial court has concluded that there is no issue of fact to be ...


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