The opinion of the court was delivered by: (Judge Munley)
Before the court is Trustee Bank of New York Mellon's Motion for Summary Judgment.
This case arises out of a real-estate dispute over plaintiff's home in Pottsville, Pennsylvania. Plaintiff alleges that on January 24, 2008, Defendant J.P. Morgan Chase Bank ("Morgan") filed an action in the Court of Common Pleas of Schuylkill County seeking foreclosure on the property in question. (See Complaint (hereinafter "Complt."), exh. 1 to Notice of Removal (Doc. 1) at ¶ 4). Defendant Morgan asserted that the bank was the foreclosure trustee under the plaintiff's mortgage, and thus the proper party to assert rights under the mortgage against the plaintiff. (Id. at ¶ 5). Plaintiff alleges that Morgan had no such right, and was so informed by a preliminary objection. (Id. at ¶ 6). Despite this information, Morgan filed an amended complaint which again asserted a right to foreclosure. (Id. at ¶ 7). Plaintiff again filed objections, and Morgan filed a second amended complaint. (Id. at ¶ 8-9). Morgan's action again forced plaintiff to file objections. (Id. at ¶ 9). Defendant then discontinued the foreclosure action, which plaintiff alleges was filed without probable cause and in an effort to obtain money to which defendant was not entitled. (Id. at ¶¶ 10-11.
Plaintiff filed a complaint in the Schulykill Pennsylvania Court of Common Pleas. The complaint alleged that defendant's foreclosure action was the result of gross negligence and sought damages in the form of attorney's fees and emotional distress. On July 9, 2010, Bank of New York Mellon ("Bank of New York" or "the Bank"), representing itself as the successor in interest to Defendant Morgan, filed a notice of removal in this court. (Doc. 1). The Bank alleged that there was diversity between the parties and the amount in controversy exceeded $75,000, meaning that this court had jurisdiction over the matter and removal was appropriate. On July 13, 2010, the Bank filed an answer to the complaint, as well as a counterclaim and a third party complaint. (Doc. 3). The counterclaim seeks mortgage foreclosure and assumpsit against the Whites.
On August 6, 2010, plaintiff filed a motion to remand the case to the Common Pleas Court in Schulykill County. The court denied this motion. (See Doc. 10). The parties then engaged in discovery.
Discovery revealed that on September 19, 2000, Plaintiff Scott A. White and his wife Deborah L. White (collectively "the Whites") signed and executed a promissory note payable to New Jersey Mortgage and Investment Corporation. (Trustee's Statement of Material Facts (Doc. 34) (hereinafter "Trustee's Statement") at ¶ 1). The note had a principal sum of $60,800.*fn1 To secure this note, the Whites executed and delivered a mortgage to New Jersey Mortgage and Investment Corporation. (Id. at ¶ 2). This mortgage was secured by real property located at 618 Mahantongo Street, Pottsville, Pennsylvania. (Id.). The mortgage was recorded on September 26, 2000. (Id. at ¶ 3). Trustee is the current owner and holder of the note and the mortgage, and the holder-in-due-course of the note. (Id. at ¶¶ 4-5). The Whites failed to make a payment on their loan due on July 5, 2007 and have not made any payments since. (Id. at ¶ 6). They are in default and have not cured that default. (Id. at ¶ 7). The trustee has elected to accelerate the loan and demand the entire amount due. (Id. at ¶ 8). As of February 16, 2011, plaintiffs owed $60,618.02 on the loan principal, plus $23,971.07 in interest, escrow charges of $4,600.16, and late charges and fees of $12,101.89. (Id. at ¶ 9). Their indebtedness totaled $101,291.14. (Id.). Plaintiff also owed interest fo $18.68 per diem plus any escrow advances after February 15, 2011. (Id.).
In September 2010 plaintiff and movant reached a settlement agreement. (Id. at ¶ 10). Plaintiff agreed to dismiss his claims in the instant matter as part of that agreement. (Id.). He has not done so, nor has he complied with another provision in the agreement that required the Whites to deed Bank of New York Mellon the property in question with clear title. (Id. at ¶ 12). That agreement provided that failure to deliver clear title to the Bank would place the Whites in default, allowing the Bank to take appropriate action. (Id.). The Whites failed to provide this deed to the Bank, and are in violation of the settlement agreement. (Id. at ¶ 13).
At the close of discovery the Bank filed the instant motion. The motion seeks summary judgment on plaintiff's claim and on the Bank's counterclaim. Plaintiff did not respond to the motion, despite being warned to do so by the court. This inaction brought the case to its present posture.
Plaintiff is a Pennsylvania citizen. Defendant is a New York resident with its principal place of business in New York. The amount in controversy exceeds $75,000. The court therefore has jurisdiction pursuant to 28 U.S.C. § 1332. The court is sitting in diversity, and the substantive law of Pennsylvania shall apply. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)).
The case is before the court on defendant's' motion for summary judgment. Granting summary judgment is proper 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 judgment as a matter of law. See Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P. 56(c)). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
In considering a motion for summary judgment, the court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the non-moving party. Anderson, 477 U.S. at 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary ...