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United States v. Werner

United States District Court, M.D. Pennsylvania

March 9, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
JUDITH A. WERNER, Defendant.

MEMORANDUM

RICHARD P. CONABOY, District Judge.

Here we consider the Motion for Summary Judgment (Doc. 20) filed by Plaintiff United States of America. Plaintiff filed the motion, supporting brief (Doc. 21) and supporting affidavit (Doc. 22) on January 28, 2015. As a result of defaults in the payment of the mortgage loan, Plaintiff filed this action on November 12, 2013, to foreclose a certain real property mortgage dated and acknowledged May 31, 2007, by Defendant Judith A. Werner. (Doc. 1.) Plaintiff now moves for summary judgment on the basis that there is no genuine issue as to any material fact and Plaintiff is entitled to judgment as a matter of law. (Doc. 20 at 1.) For the reasons discussed below, we conclude that Plaintiff's motion is properly granted.

I. Background

A. Factual Background

On May 31, 2007, the Defendant Judith A. Werner, made, executed and delivered a Mortgage upon the premises, 100 Old Gap Road, Carlisle, Pennsylvania, to the United States of America. (Doc. 22 ¶ 3.)[1] The Mortgage was given as security for payment of a certain Promissory Note of the same date in the amount of $165, 400.00. ( Id. ¶ 4.) In addition to executing the Mortgage and Promissory Note on May 31, 2007, Defendant also executed a Subsidy Repayment Agreement. ( Id. ¶ 5.) Defendant acknowledged receipt of the Settlement Statement at the time of closing of the loan. ( Id. ¶ 6.)

The Mortgage is held by Plaintiff and has not been assigned. ( Id. ¶ 7.)

Within one year of the origination of this loan, Defendant became delinquent in payments and notice was sent to her on January 29, 2008, and then Notice of Acceleration was sent to her on July 28, 2008. ( Id. ¶ 8.) This delinquency was cured on September 13, 2008. ( Id. )

On April 29, 2009, the USDA received an Application for Payment Assistance from Defendant dated April 8, 2009. ( Id. ¶ 9.) The application was reviewed by USDA on May 7, 2009, and payment assistance was activated effective June 28, 2009. ( Id. ) The account once again became delinquent and notice was sent to Defendant on October 29, 2009. ( Id. ¶ 10.) On November 27, 2009, Defendant agreed to a Delinquency Workout Agreement (DWA) and was advised that should she default the DWA would be canceled. ( Id. ¶ 11.) As a result of Defendant missing payment due under the DWA, on July 28, 2010, the DWA was canceled. ( Id. ¶ 12.)

Borrowers are eligible for DWA once every two years, and therefore, Defendant was not eligible for another DWA until August 28, 2012. (Doc. 22 ¶ 13 (citing 7 C.F.R. § 3550.205).)

It was then discovered that Defendant failed to report social security income on her Payment Assistance Application, and on August 23, 2010, Defendant was advised that she received unauthorized assistance and owed $3, 393.36 to the USDA. ( Id. ¶ 14.)

On December 7, 2010, Defendant requested her account be re-amortized with the delinquent balance of $3, 393.36 along with other delinquency amounts. ( Id. ¶ 15.) On April 10, 2011, Defendant executed a Reamortization Agreement, effective March 28, 2011, and the Promissory Note was re-amortized in the amount of $168, 400.38. ( Id. ¶ 16.) The account became delinquent for the months of October 2011 through December 2011 and on January 6, 2012, the debt was accelerated. ( Id. ¶ 17.)

On January 26, 2012, Defendant sent in another Payment Assistance Application which could not be reviewed until the account was out of foreclosure. ( Id. ¶ 18 (citing 7 C.F.R. § 3550.204).) In April and May 2012, Defendant sent in funds to cure the October through December 2011 default, however, some of the moneys received were returned for nonsufficient funds. ( Id. ¶ 19.)

On May 1, 2012, a second DWA was set up to bring the delinquent account current. (Doc. 22 ¶ 20.) As a result of Defendant missing payment due under the second DWA for June 28, 2012, on August 23, 2013, the DWA was canceled. ( Id. ¶ 21.) As a result, Defendant was not eligible for another DWA for a period of two years, or until August 28, 2014. ( Id. ¶ 22 (citing 7 C.F.R. § 3550.205).)

On October 15, 2012, Defendant submitted another Payment Assistance Application and moratorium request. ( Id. ¶ 23.) However, additional income information was requested before a determination could be made and on November 5, 2012, a letter requesting the additional information was sent to ...


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