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Wells Fargo Bank, N.A. v. Carr

February 12, 2007

WELLS FARGO BANK, N.A., SUCCESSOR BY MERGER TO WELLS FARGO BANK MINNESOTA, N.A., AS TRUSTEE F/K/A NORWEST BANK MINNESOTA, N.A., AS TRUSTEE FOR THE REGISTERED HOLDERS OF HOME EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2002-3, PLAINTIFF,
v.
LINDA CARR, UNITED STATES OF AMERICA, AND TENANT/OCCUPANT, DEFENDANTS.



The opinion of the court was delivered by: A. Richard Caputo United States District Judge

MEMORANDUM

Presently before me is Plaintiff's motion for judgment on the pleadings (Doc. 25-1) in a mortgage foreclosure action against Defendants, pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, Plaintiff's motion will be granted. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a) ("diversity of citizenship").

BACKGROUND

Defendant Linda Carr is the mortgagor and real owner of the real property located at 16 Polk Township Road in Brodheadsville, Pennsylvania, 18322 ("the Property"). (Compl. ¶ 2, Answer ¶ 2.) On or about August 28, 2002, at the instance and request of Defendant Carr and former defendant Richard Boyer, Plaintiff*fn1 loaned to Defendant Carr and Mr. Boyer the sum of $90,000.00 (Compl. Ex. A p. 1), and as security for this loan, Carr and Boyer executed and delivered to Plaintiff a mortgage encumbering their interest in the Property. (Compl. ¶ 6, Answer ¶ 6.) Ms. Carr has failed to make her mortgage payments since June 1, 2004, and the mortgage is therefore in default. (Compl. ¶ 10, Answer ¶ 10.) Notice of foreclosure proceedings was sent to the individual mortgagors pursuant to the Homeowners' Emergency Mortgage Assistance Act of 1983, 35 P.S. § 1680.402c, et seq. via first-class mail and certified mail. (Compl. ¶ 15; Compl. Ex. C p. 29.) Plaintiff claims that the following itemized amounts are due from Defendant as of December 16, 2004:

Principal of Mortgage debt due and unpaid $88,782.03

Interest currently due and owing at 8.04% per $4,498.80 annum calculated from May 1, 2004 at $19.56 per diem Late Charge of $33.15 per month assessed on the $232.05 16th of each month

Accrued Late Charges$198.90 Property Inspection$10.50 Suspense/Unapplied Balance($443.35) Title Search/Report Fees$250.00 Attorneys' Fees and Costs$1,500.00 TOTAL$95,028.93

(Compl. ¶ 11.)

On December 23, 2004, Plaintiff filed a Complaint against Linda Carr, Richard Boyer, and the United States of America.*fn2 (Doc. 1.) Defendant Linda Carr filed an Answer on March 23, 2005. (Doc. 7.) On July 29, 2005, in response to Plaintiff's motion for default judgment, the Court entered default judgment only as to Defendant Richard Boyer in the amount of $99,061.59 through the date of June 30, 2005, plus costs and per diem interest until said judgment date. (Doc. 21.) On March 17, 2006, Plaintiff filed the present motion for judgment on the pleadings as to Defendant Linda Carr. (Doc. 25.) On July 25, 2006, Plaintiff filed a motion to stay the proceedings for an administrative purpose. (Doc. 32.) On August 4, 2006, the Court granted Plaintiff's motion to stay the proceedings for an administrative purpose, and the case was terminated. (Doc. 33.) On November 14, 2006, Plaintiff moved to reactive the civil action (Doc. 34), and the Court issued an Order on November 20, 2006 reopening the case (Doc. 35). Defendant has not filed a brief in opposition to Plaintiff's present motion for judgment on the pleadings.

This motion is fully briefed and ripe for disposition.

LEGAL STANDARD

The standards for deciding a motion for judgment on the pleadings pursuant to Rule 12(c) and a motion to dismiss pursuant to Rule 12(b)(6) are identical. Turbe v. Gov't of V.I., 938 F.2d 427, 428 (3d Cir. 1991). Thus, the district court must view the facts and inferences to be drawn from the pleadings in the light most favorable to the non-moving party. Green v. Fund Asset Mgmt., L.P., 245 F.3d 214, 220 (3d Cir. 2001). "[J]udgment will not be granted 'unless the movant clearly establishes that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.' " Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988) (quoting Soc'y Hill Civic Ass'n v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980)).

DISCUSSION

Presently before the Court is Plaintiff's motion for judgment on the pleadings (Doc. 25-1) in a mortgage foreclosure action against Defendant Linda Carr.

Count I of Plaintiff's Complaint seeks an in rem judgment against Defendant in foreclosure of the mortgage for the total amount listed above, together with interest from December 16, 2004 until the date of judgment in the amount of $19.56 per diem, plus other costs and charges collectible under the mortgage and for the foreclosure and sale of the mortgaged property. Count Two is an action in assumpsit seeking an ...


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