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U.S. Bank National Association v. Zimmer

United States District Court, M.D. Pennsylvania

January 30, 2015

U.S. BANK, NATIONAL ASSOCIATION, as Trustee, successor-in-interest to WACHOVIA BANK, N.A., as Trustee for MLMI 2005-A8 Plaintiff,
DEBBIE ZIMMER 225 Blue Mountain Lake East Stroudsburg, PA 18301 and LAWRENCE ZIMMER 225 Blue Mountain Lake East Stroudsburg, PA 18301 Defendants.


EDWIN M. KOSIK, District Judge.

Before the Court are the parties' cross motions for summary judgment in the above-captioned mortgage foreclosure action. For the reasons which follow, U.S. Bank, N.A.'s motion will be granted, and the Zimmers motion will be denied.


The instant action relates to real property located at 530 Highpoint Court, East Stroudsburg, Pennsylvania ("Subject Property"). (Doc. 67, Pl.'s SMF, at ¶ 1.) Lawrence and Debbie Zimmer are the record owners of the Subject Property. (Id. at ¶ 2.)

On June 9, 2005, the Zimmers applied for a loan to refinance a mortgage on the Subject Property and executed an Adjustable Rate Note ("Note") in favor of Ameriquest Mortgage Company in the amount of $319, 500.00. (Id. at ¶¶ 3-5.) The Zimmers executed a Mortgage upon the Subject Property, and it was duly recorded in the Office of the Recorder of Deeds of Monroe County, on June 15, 2005. (Id. at ¶¶ 6-7.) On or about April 15, 2010, the Zimmers executed a Loan Modification Agreement. (Id. at ¶ 11.)

Two Assignments of Mortgage occurred, and the Zimmers dispute whether they were valid. (Id. at ¶ 16; Doc. 75, Defs' Br. in Opp., Attach. 1, Defs' CSMF, at ¶ 16.) U.S. Bank, N.A. claims that it is the current holder of the original Mortgage and Note, and is in possession of the same. (Doc. 67, Pl.'s SMF, at ¶¶ 12-14.) Lawrence Zimmer, along with his attorney, inspected the loan documents at the office of U.S. Bank, N.A.'s counsel, and claim that the Note is not the original. (Doc. 67, Pl.'s SMF, at ¶ 15; Doc. 75, Attach. 1, Defs' CSMF, at ¶¶ 14-15.)

The Zimmers do not dispute that they did not make each and every monthly installment due as per the terms of the Note and Mortgage, as modified by the Loan Modification Agreement. (Id. at ¶ 17.) The mortgage loan is due from August 1, 2010, and all payments since then. (Id. at ¶ 18.) On May 17, 2011, the Zimmers were provided with a pre-foreclosure notice pursuant to Act 91. (Id. at ¶ 19.) U.S. Bank, N.A. claims that the Zimmers owe a total amount of $508, 930.50, as of April 23, 2014. (Id. at ¶ 22.)

Subsequent to the commencement of this action, the Zimmers filed suit against U.S. Bank, N.A. in the Court of Common Pleas of Monroe County, Pennsylvania ("State Court Action").[1] (Id. at ¶ 20.) On February 11, 2014, the State Court Action was dismissed with prejudice, upon granting U.S. Bank, N.A.'s preliminary objections. (Id. at ¶ 21.)


On April 6, 2012, U.S. Bank, N.A. filed the Complaint (Doc. 1) and initiated this mortgage foreclosure action against the Zimmers. On September 10, 2013, U.S. Bank, N.A. filed its first Motion for Summary Judgment (Doc. 29). The Zimmers filed a Motion to Compel Discovery (Doc. 32) on September 11, 2013, and an Amended Motion to Compel Discovery (Doc. 39) on October 14, 2013. On October 18, 2013, the Court denied U.S. Bank, N.A.'s Motion for Summary Judgment and extended discovery for sixty days (Doc. 43). At the status conference on November 14, 2013, the Court stated that at the conclusion of discovery, the Court would consider whether new motions for summary judgment could be filed by the parties. (Doc. 50.)

On May 8, 2014, U.S. Bank, N.A. filed a second motion for summary judgment (Doc. 65). The Zimmers then filed a cross-motion for summary judgment (Doc. 68) on May 12, 2014. The parties filed corresponding briefs to the motions; thus, the motions are ripe for disposition.


Summary judgment is appropriate when "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 the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" if there is sufficient evidence with which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988) (citing Anderson, 477 U.S. at 248). A factual dispute is "material" if it might affect the outcome of the case. Anderson, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the non-moving party. Skerski v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir. 2001); White v. Westinghouse Elec, Co., 862 F.2d 56, 59 (3d Cir. 1988).

A party seeking summary judgment always bears the initial burden of informing the court of the basis of its motion and identifying those portions of the record that it believes demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The non-moving party then has the burden to "come forth with affirmative evidence, beyond the allegations of the pleadings, ' in support of its right to relief." U.S. Bank, Nat'l Ass'n v. Greenfield, Civ. Action No. 1:12-CV-2125, 2014 WL 3908127, *2 (M.D. Pa. Aug. 11, 2014) (quoting Pappas v. City of Lebanon, 331 F.Supp.2d 311, 315 (M.D. Pa. 2004)). "If a party fails to properly support an assertion of fact or fails to properly ...

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