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CHEMICAL BANK v. DIPPOLITO

August 28, 1995

CHEMICAL BANK, Plaintiff,
v.
MARTIN DIPPOLITO and MICHAEL TIEDEKEN, Defendants.



The opinion of the court was delivered by: J. CURTIS JOYNER

 Joyner, J.

 August 28, 1995

 Today we address Plaintiff Chemical Bank's motion for summary judgment in this mortgage foreclosure action. For the reasons stated below, the motion will be granted in part.

 I. BACKGROUND

 Martin Dippolito and Michael Tiedeken, the defendants in this action, purchased real estate in Glenside, Pennsylvania ("the property") on April 28, 1989. Messrs. Dippolito and Tiedeken borrowed $ 106,000 at 12.75% interest from Bell Savings Bank PaSA ("Bell") in order to purchase the property, and agreed to repay the loan in installments of $ 1,175.61 per month beginning June 1, 1989, with a balloon payment due on May 1, 1994. As security for the loan, Messrs. Dippolito and Tiedeken executed a mortgage on the property in Bell's favor on April 28, 1989. *fn1" In May of 1992, Bell assigned the bond and mortgage to Chemical Bank ("Chemical"), the plaintiff in this action. Mr. Dippolito died intestate on June 6, 1991, and subsequently Sandra J. Dippolito was named administratrix of Martin Dippolito's estate. After Mr. Dippolito's death, Mr. Tiedeken continued to make and Chemical continued to accept monthly payments up through February 28, 1995, but he did not make the May 1, 1994 balloon payment.

 Chemical initiated this foreclosure action in July of 1994, alleging that Messrs. Tiedeken and Dippolito had defaulted on the mortgage. *fn2" In the spring of 1995, Chemical filed the instant motion for summary judgment and supporting affidavit, in which it asserts that as of April 30, 1995, it was entitled to judgment in the amount of $ 108,452.60, plus attorneys' fees and costs and interest accruing at 35.77 per day, as follows:

 ILLEGIBLE TABLE IN ORIGINAL

 In his response, Mr. Tiedeken invokes the defense of equitable estoppel, and argues that Chemical's acceptance of monthly payments after May 1, 1994 estops it from claiming his failure to make the balloon payment is a default on the mortgage. Moreover, Mr. Tiedeken argues that the late charges, appraisal and environmental charges, legal fees, and other costs claimed by Chemical are not supported by the mortgage agreement.

 II. DISCUSSION

 A. Summary Judgment Standard

 This Court is authorized to award summary judgment "if the pleadings, depositions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Thus, the Court's responsibility is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Liberty Lobby, 477 U.S. at 249). Further, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Boiled to its essence, the summary judgment standard requires the non-moving party to create a "sufficient disagreement to require submission [of the evidence] to a jury." Liberty Lobby, 477 U.S. at 251-52.

 B. Mortgage Foreclosure

 In a mortgage foreclosure action, the plaintiff must show the existence of an obligation secured by a mortgage, and a default on that obligation. In re Kelly, 150 Bankr. 121, 122 (Bankr. M.D. Pa. 1992); United States v. Freidus, 769 F. Supp. 1266, 1277 (S.D. N.Y. 1991). Mr. Tiedeken does not dispute the validity of the mortgage or his obligation under it. Further, he concedes that he failed to make the balloon payment by the May 1, 1994 deadline, and that he has failed to cure his default since that time by remitting the unpaid principal balance. According to the provisions of the agreement, therefore, Mr. Tiedeken has defaulted on his obligation under the mortgage. Thus, Chemical is entitled to judgment at this stage unless Mr. Tiedeken ...


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