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[U] First Federal Savings & Loan Association of Greene County v. McCloskey

Superior Court of Pennsylvania

February 4, 2014

FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF GREENE COUNTY, Appellee
v.
KEVIN E. McCLOSKEY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order entered on December 11, 2012 in the Court of Common Pleas of Washington County, Civil Division, No. 2012-624

BEFORE: PANELLA, OLSON and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Kevin E. McCloskey ("McCloskey") appeals, pro se, from the Order entering summary judgment against him and in favor of First Federal Savings and Loan Association of Greene County ("First Federal"). We affirm.

On September 19, 2006, McCloskey, an attorney, entered into a mortgage agreement with First Federal concerning a residence that he planned to purchase, located at 1251 Meadowbrook Drive, McMurray, Pennsylvania (hereinafter "the Property"). By this agreement, McCloskey was obligated to repay First Federal the principal sum of $107, 000, via monthly mortgage payments.

According to First Federal, in September 2011, McCloskey ceased making monthly mortgage payments. In November 2011, First Federal sent McCloskey a Notice informing him that he was in default and that First Federal intended to foreclose the mortgage if he did not cure the default by making the missed payments. In February 2012, First Federal initiated this action by filing a Complaint, asserting that McCloskey had failed to make any mortgage payments for over five months.

Following a procedural history that is not relevant to this appeal, on July 18, 2012, McCloskey filed an Answer and New Matter in response to First Federal's Complaint. In this filing, McCloskey admitted that (1) he executed the mortgage agreement with First Federal; (2) the amount of the mortgage was $107, 000; and (3) he was the owner of the Property. However, concerning all of the remaining averments in the Complaint, including the averment that McCloskey was in default on his mortgage payments for a period in excess of five months, McCloskey responded with the following: "After a reasonable investigation, [McCloskey] is unable to form a belief as to the truth and accuracy of [these averments, and], therefore, they are hereby denied in full …." Answer and New Matter, 7/18/12, at ¶¶ 1, 5, 6, 8-11.

On October 1, 2012, First Federal filed a Motion for summary judgment, [1] asserting that it was entitled to judgment as a matter of law because McCloskey had admitted to all of the requisite elements of a prima facie mortgage foreclosure claim. By an Order entered on December 11, 2012, the trial court entered summary judgment against McCloskey.

McCloskey timely filed a pro se Notice of appeal. In response, the trial court ordered McCloskey to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. McCloskey timely filed a Rule 1925(b) Concise Statement.[2]

On appeal, McCloskey presents the following issues for our review:
1. Whether the [] trial court [erred by] fail[ing] to apply the proper standard for granting summary judgment[?]
2. Whether the [] trial court [erred by] fail[ing] to deny [First Federal's] Motion for summary judgment on the grounds that a discrepancy exists between the Motion for summary judgment and the attached Summary Judgment Affidavit[?]
3. Whether the [] trial court [erred by] fail[ing] to deny [First Federal's] Motion for summary judgment on the grounds that [McCloskey] has made out a defense to the claims presented in [First Federal's] Complaint in foreclosure[?]
4. Whether the [] trial court [erred by] fail[ing] to deny [First Federal's] Motion for summary judgment on the grounds that discovery had not yet been completed and that no case management order had been issued[?]

Brief for Appellant at 11 (some capitalization omitted).

Our standard of review of an order granting or denying a motion for summary judgment is well-settled:

We view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion.

Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012) (citation omitted).

In an action for mortgage foreclosure, summary judgment is proper where the mortgagor/defendant admits that he or she failed to make payments due, and fails to plead a cognizable defense to the plaintiff's claim. Gateway Towers Condo. Ass'n v. Krohn, 845 A.2d 855, 858 (Pa.Super. 2004); see also Cunningham v. McWilliams, 714 A.2d 1054, 1057 (Pa.Super. 1998) (providing that entry of summary judgment is proper if the mortgagor admits that (1) the mortgage is in default; (2) the mortgagor has failed to pay interest on the obligation; and (3) the recorded mortgage is in the specified amount).

McCloskey first argues that the trial court erred in entering summary judgment against him because it failed to apply the proper standard pertaining to motions for summary judgment. Brief for Appellant at 17. McCloskey contends that "[First Federal] incorrectly relied on the sufficiency of its own [] Complaint and the supporting [Summary Judgment] Affidavit in the [trial] court[] to prove its entitlement to summary judgment." Id. at 19. Additionally, McCloskey maintains that, in his Answer, he denied several of the averments contained in First Federal's Complaint "by way of Pa.R.C.P. 1029(c), "[3] which, according to McCloskey, "acts as a complete denial[.]" Brief for Appellant at 19. Accordingly, McCloskey argues that "[b]y allowing [First Federal] to rest on the allegations contained in its Complaint without giving [McCloskey] an opportunity to independently verify the averments in the Complaint after they were denied is contrary to the application of the standards for summary judgment." Id. at 20 (capitalization omitted).

In its Opinion, the trial court concisely addressed McCloskey's claims and explained its reasons for determining that these claims lacked merit. See Trial Court Opinion, 4/8/13, at 2-4. Since our review discloses that the trial court's sound rationale is supported by the record and the law, we affirm on this basis with regard to McCloskey's first issue. See id.; see also First Wis. Trust Co. v. Strausser, 653 A.2d 688, 692 (Pa.Super. 1995) (stating that "in mortgage foreclosure actions, general denials by mortgagors that they are without information sufficient to form a belief as to the truth of averments as to the principal and interest owing must be considered an admission of those facts."); Pa.R.C.P. 1029(b) (providing that "[a] general denial … shall have the effect of an admission.").

Next, McCloskey argues that the trial court improperly granted summary judgment against him because there is a "discrepancy" between First Federal's Motion for summary judgment and the Summary Judgment Affidavit attached thereto. Brief for Appellant at 21. Specifically, McCloskey points out that, in the Motion for summary judgment, First Federal stated that the amount of the mortgage was $117, 000; however, the Summary Judgment Affidavit listed the amount of the mortgage as $107, 000. Id.; see also Motion for Summary Judgment, 10/1/12, at ¶ 5; Summary Judgment Affidavit, 10/1/12, at ¶ 4. McCloskey asserts that this discrepancy creates an "issue of material fact, " thus precluding the entry of summary judgment. Brief for Appellant at 21. We disagree.

In response to first Federal's Complaint, McCloskey admitted that the amount of the mortgage was $107, 000. See Answer and New Matter, 7/18/12, at ¶ 4. Accordingly, McCloskey cannot now be heard to complain that there was any confusion, or material issue of fact, regarding the precise amount of the mortgage, having already admitted to its value.

Furthermore, First Federal asserts that the $117, 000 sum contained in the Motion for summary judgment was merely a typographical error. Brief for Appellee at 10. This assertion is supported by the record. Both First Federal's Complaint, and the Mortgage Agreement itself, state that the amount of the mortgage was, in fact, $107, 000. See Complaint, 2/3/12, at ¶ 4; Complaint, 2/3/12, Exhibit A (Mortgage Agreement, 9/19/06).

In his third issue, McCloskey argues that the trial court abused its discretion by entering summary judgment against him because he presented a cognizable defense to First Federal's mortgage foreclosure action. Brief for Appellant at 22. Specifically, McCloskey alleges that he "established facts which are sufficient to make out [a] cognizable defense that [First Federal] ha[d] failed to properly comply with any loss mitigation requirements prior to filing the foreclosure action." Id.; see also id. (asserting that First Federal "fail[ed] to properly service [the] mortgage[.]").

In its Opinion, the trial court set forth its cogent reasons for determining that this claim lacks merit, and we adopt its rationale herein by reference. See Trial Court Opinion, 4/8/13, at 5-6. In sum, the trial court determined that (1) McCloskey had failed to raise the above-mentioned purported defenses before the trial court; and (2) McCloskey's bald allegations that he advanced in his court-ordered Rule 1925(b) Concise Statement pertaining to these defenses were of insufficient specificity to allow the trial court to properly address this issue. See id. Accordingly, McCloskey has waived this issue on appeal. See Pa.R.A.P. 302(a) (providing that "issues not raised in the lower court are waived and cannot be raised for the first time on appeal."); see also Pa.R.A.P. 1925(b)(4)(ii) & (vii) (providing, respectively, that "[t]he Statement shall concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge[, ]" and that "[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived." (emphasis added)).

Finally, McCloskey asserts that the trial court erred in failing to give him an opportunity to conduct discovery prior to entering summary judgment against him. Brief for Appellant at 25. According to McCloskey, the trial court improperly "cut off [his] fundamental right to seek discovery regarding his defenses." Id. at 27 (citing Reeves v. Middletown Athletic Ass'n, 866 A.2d 1115, 1124 (Pa.Super. 2004) (stating that parties must be given reasonable time to complete discovery before a trial court entertains any motion for summary judgment, so long as the party seeking discovery "demonstrate[s] that the information [they] sought to discover was material to their case and that [they] proceeded with due diligence in attempting to obtain the information.")).

Because McCloskey admitted, or was deemed to have admitted, the material elements of a prima facie mortgage foreclosure action, and he presented no cognizable defense, summary judgment was proper and no discovery on the issue was warranted or necessary. Accordingly, McCloskey's final claim does not entitle him to relief, and his reliance upon Reeves, supra, is unavailing.

Based upon the foregoing, we discern no abuse of discretion or error of law by the trial court in granting First Federal's Motion for summary judgment. Accordingly, we affirm the Order on appeal.

Order affirmed.

Judgment Entered.


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