U.S. BANK, Plaintiff,
ANTONIO MONTALVO, SR., et al., Defendants.
ROBERT D. MARIANI, District Judge.
I. Introduction and Jurisdiction
Previously, the Court issued an Order deferring a ruling on Plaintiff's Motion for Summary Judgment (Doc. 39) pending Defendants' submission of "evidence of any pending or current loan modification agreements in place, to the extent they exist." (Doc. 44, at ¶ 2). The deadline for submission of such evidence having passed without Defendants' production of any pending or current loan modification agreements, the Court will grant Plaintiff's Motion for Summary Judgment in this mortgage foreclosure action against Antonio Montalvo, Sr. ("Senior") and his son ("Junior"). (Doc. 39).
This Court has jurisdiction over the matter pursuant to 28 U.S.C. § 1332(a)1), and venue is proper in this jurisdiction pursuant to 28 U.S.C. § 1391(a).
II. Statement of Undisputed Facts
On June 30, 2003, Defendant Senior borrowed the principal sum of $223, 250.00 from The CIT Group/Consumer Finance, Inc., as memorialized in a promissory note ("Note"). ( See Copy of Note, Doc. 39, Ex. A). To secure the Note, both defendants executed a mortgage on real property located at 1 Devonshire Lane a/k/a Lot 49, Section 4A, Mount Pocono, PA 18344 ("Mortgaged Property"), which was duly recorded in the Office of the Recorder of Deeds of Monroe County that same day. ( See Doc. 39, Ex. B). The CIT Group/Consumer Finance, Inc. eventually assigned the Mortgage to Plaintiff, U.S. Bank, and the Assignment of Mortgage was duly recorded in the Office of the Recorder of Deeds in Monroe County on July 21, 2008. ( See Assignment of Mortgage, Doc. 39, Ex. C). After the assignment, Defendants defaulted under the Note and Mortgage by failing to make the necessary payments, and as of this date, have not cured the default. ( See Motlow Aff., Doc. 39, Ex. D, at ¶ 12). On June 26, 2008, Defendant Junior was sent a Notice of Homeowner Emergency Assistance in accordance with 35 P.S. § 1680.402c, et seq. (Doc. 1, Ex. B).
Defendants having failed to pay the sum due under the Note and Mortgage, Plaintiff initiated this present mortgage foreclosure action. (Doc. 1). As of July 31, 2013, $384, 702.80 is due under the Note and Mortgage, including principal, interest, late charges, escrow advances, and other fees. ( See Ex. D, ¶ 11).
Standard for Summary Judgment
Through summary adjudication, the court may dispose of those claims that do not present a "genuine issue as to any material fact." FED. R. CIV. P. 56(a). Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.1990. "As to materiality, ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberly Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied 507 U.S. 912 , 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).
Nature of Action
As a preliminary matter, the Court will first discuss the nature of this action. Defendant Junior appears to be under the perception that this is both a mortgage foreclosure action and a breach of contract action on the underlying promissory note. Under Pennsylvania law,
[a]n action in mortgage foreclosure is strictly an in rem action and may not include an in personam action to enforce personal liability. PA. R.C.P. 1141. The sole purpose of a judgment obtained through mortgage foreclosure is to effect a judicial sale of the mortgaged real estate, Meco Realty Co. v. Burns, 414 Pa. 495, 200 A.2d 869 (1964), and the judgment obtained in a mortgage foreclosure action is only in rem. First Seneca Bank v. Greenville Distributing Co., 367 Pa.Super. 558, 533 A.2d 157 (1987). However, where a mortgagee fails to follow PA. R.C.P. 1141 and includes in a mortgage foreclosure complaint a request not only for an in rem judgment of foreclosure on the mortgaged property but also an in personam judgment against the individuals who executed the mortgage for their personal liability on the note or bond accompanying the mortgage, the judgment in mortgage foreclosure can be both in rem ...