The opinion of the court was delivered by: CALDWELL
Pending is Plaintiff's motion for summary judgment. We exercise jurisdiction pursuant to 28 U.S.C. § 1332.
On December 19, 1986, the Defendants, Chester L. and Connie M. Strawser, executed an Adjustable Rate Note ("the Note") in favor of Homestead Savings Association ("Homestead"), in consideration of and as security for a loan in the amount of $ 350,000.00. Pursuant to a Security Agreement executed at the same time, the Note was secured by a mortgage on four parcels of real property, and by farming and industrial equipment. The Note is payable in monthly installments with the balance, if any, due January 1, 1997. On March 22, 1993, the Note and Mortgage were assigned to Plaintiff, State Street Bank & Trust Company ("State Street"). The assignment is recorded at Juniata County Record Book No. 175, page 296 and Perry County Record Book No. 735, page 311.
Paragraph 7(B) of the Note defines "default" as follows:
(B) If I do not pay the full amount of each monthly payment on the date it is due, I will be in default.
(B)(1) If a [sic] fail to comply with and perform all of the covenants and obligations in the Letter of Commitment, dated October 8, 1986, which are not specifically addressed in this Note and accompanying Mortgage, I will be in default, unless the default which is the subject of this sub-paragraph is cured within fifteen (15) days after receipt of written notice thereof is given to me by Note Holder. The non-waiver provisions of paragraph (D) and payment of costs and expenses provisions of paragraph (E), shall apply to this type of default as well.
[Complaint, Exh. A]. In paragraph 7(C), the Note provides that "if I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount."
On October 17, 1994, State Street sent a Notice of Default to Defendants, indicating that if Defendants did not pay the past due principal and interest within thirty days, State Street would exercise the acceleration clause in paragraph 7(C), causing the entire balance and per diem interest to become due immediately. [Complaint, Exh. B]. State Street asserts that it received no response from Defendants as a result of this demand.
On January 23, 1995, State Street instituted this action for breach of contract, alleging that the Strawsers have not made monthly payments since April 1, 1993, and are thus in default under paragraph 7(B) of the Note. State Street seeks the balance due on the Note, per diem interest, late charges, and attorneys' fees pursuant to paragraph 7(E) of the Note.
In their answer, Defendants deny that they are in default and assert an affirmative defense that State Street's claim is barred by the doctrine of illegality because the Note and Mortgage were obtained in violation of 7 P.S. § 311(e).
On November 20, 1995, State Street filed the instant motion for summary judgment. The parties have fully briefed the issues, and the motion is ripe for disposition.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). In reviewing the evidence, facts and inferences must be viewed in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553 (1986). Summary judgment must be entered in favor of the moving party "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted).
When a moving party has carried his or her burden under Rule 56, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . ." Id. (citations omitted). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," and cannot "simply reassert factually unsupported allegations contained in [the] pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (emphasis in original) (citation omitted). However, "if the evidence is merely colorable, or is not significantly probative, summary ...