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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NON-PRECEDENTIAL DECISION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 ...

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