WELLS FARGO BANK, N.A., AS THE TRUSTEE FOR THE REGISTERED HOLDERS OF THE GE BUSINESS LOAN TRUST CERTIFICATES, SERIES 2005-2 Appellee
PREMIER HOTELS GROUP, LLC Appellant
from the Order Entered May 10, 2016 In the Court of Common
Pleas of Lackawanna County Civil Division at No: 2015-05776
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
Premier Hotels Group, LLC ("Premier"), appeals from
the May 10, 2016 order entered in the Court of Common Pleas
of Lackawanna County, granting summary judgment in favor of
Appellee, Wells Fargo Bank, N.A., as the Trustee for the
registered holders of the GE Business Loan Trust
Certificates, Series 2005-2 ("Wells Fargo").
Following review, we reverse.
record reveals that in September 2005 Premier executed a
promissory note (the "Note") and mortgage (the
"Mortgage") in favor of General Electric Capital
Corporation ("GECC") in the amount of $4, 400,
000.00 for property located at 200 Tigue Street, Dunmore,
Pennsylvania ("the Property"). GECC assigned the
Mortgage and other loan documents to Wells Fargo by
assignment recorded on June 27, 2012.
capacity as Trustee, Wells Fargo filed a complaint on
September 30, 2015, alleging that Premier was in default
under the loan documents; that Premier had sold the Property
in response to a foreclosure action initiated by Wells Fargo
in federal court and had remitted the proceeds of the sale to
Wells Fargo; that the proceeds were insufficient to satisfy
the Note in full; and that Wells Fargo was entitled to
collect from Premier the sum of $1, 772, 957.37plus per diem
interest in the amount of $275.50 from August 5, 2015
forward. Complaint, 9/30/15, at ¶¶ 6-16. In Count I
of the complaint, styled "Breach of Note, " Wells
Fargo incorporated its allegations of default and alleged it
was entitled to recover the amounts due as well as attorney
fees and other expenses as agreed upon under the terms of the
Note. Id. at ¶¶ 17-24.
filed its answer and new matter on December 2, 2015. Premier
denied it was in default; acknowledged it sold the property
and remitted the proceeds in exchange for which the Mortgage
was released; denied the proceeds were insufficient to
satisfy the Note in full; and denied any principal, interest,
fees or other balance was due to Wells Fargo. Answer and New
Matter, 12/2/15, at ¶¶ 6-24. Premier also raised
several affirmative defenses. Id. at ¶¶
25-41. However, from the record it appears that Premier did
not endorse its answer and new matter with a notice to plead,
and Wells Fargo did not file a reply to new matter.
Therefore, the pleadings were closed at that time.
weeks later, on February 12, 2016, Wells Fargo filed a motion
for summary judgment and a memorandum in support, contending
there was "no genuine issue of material fact as to the
enforceability of the Note, [Premier's] breach, and the
obligations due the Trustee, nor does [Premier's] Answer
raise any issue of material fact." Motion for Summary
Judgment, 2/12/16, at 4. Attached to the motion was an
affidavit of Wells Fargo Assistant Vice President Mark Farr
("Farr Affidavit"). In the Farr Affidavit, Farr
represented that the relevant electronic loan payment records
were voluminous and that he based the sums claimed in the
complaint on his review of those documents. Farr Affidavit at
¶¶ 41-42. Farr further represented that the summary
of sums claimed was "prepared from 'duplicates'
(see Pa.R.Evid. 1001(e)) of the electronic loan
records previously produced in discovery." Id.
at ¶ 43. He suggested that "[t]he summary
should be admissible as the best evidence thereof pursuant to
Pa.R.Evid. 1002 and as relevant under Pa.R.Evid. 402."
Id. at ¶¶ 43-44.
filed a response to Wells Fargo's summary judgment motion
contending, inter alia, that it was current with its
payments until Wells Fargo refused to accept them and that no
event of default occurred as alleged by Wells Fargo.
Premier's Response to Motion for Summary Judgment,
3/29/16, at ¶¶ 1, 4-9. Premier presented evidence
filed in federal court in response to Well Fargo's motion
for summary judgment, including the declaration of
Premier's general manager, Umesh Matta, explaining that
Wells Fargo claimed Premier was in default when Wells Fargo
discovered that Premier was disputing real estate taxes on
the Property. Id. at Exhibit "A;" see
also Exhibit "5" (Fanucci Sworn Declaration)
explaining that Premier rightfully contested taxes,
negotiated a payment plan with the Lackawanna Tax Claim
Bureau, made payments to satisfy all amounts due, and did so
without the Property ever being scheduled for tax
sale. Premier also claimed that the motion for
summary judgment should fail because it was based solely on
the testimonial Farr Affidavit in violation of the
Nanty-Glo rule. Id. at ¶¶ 1, 10-11.
"The Nanty-Glo rule means 'the party moving
for summary judgment may not rest solely upon its own
testimonial affidavits or depositions, or those of its
witnesses, to establish the non-existence of genuine issue of
material fact.'" DeArmitt v. New York Life Ins.
Co., 73 A.3d 578, 595 (Pa. Super. 2013) (quoting
Dudley v. USX Corp., 606 A.2d 916, 918 (Pa. Super.
oral argument on May 10, 2016, the trial court granted
summary judgment in favor of Wells Fargo. Order, 5/10/16, at
1. The order signed by the trial judge was the proposed order
submitted by Wells Fargo and simply provided that Wells
Fargo's "[m]otion is GRANTED and summary judgment is
entered in favor of [Wells Fargo] and against [Premier] in
the amount of $1, 772, 959.37 as of August 5, 2015, together
with per diem interest at $275.50 from and after August 5,
2015, together with attorney's fees and costs."
Id. This timely appeal followed.
letter dated August 5, 2016, this Court advised the trial
court that a Rule 1925(a) opinion (or statement in lieu of)
was missing from the record. The trial court was directed to
resubmit the record or submit a supplemental record with the
missing item by August 19, 2016. The trial court did not
comply with that instruction.
10, 2017, we remanded the case to the trial court for
preparation of a Rule 1925(a) opinion within thirty days of
this Court's directive. The trial court filed its opinion
on September 11, 2017. In its opinion, the trial court explained
that Wells Fargo established there were no material facts in
dispute and, therefore, the court granted the motion for
summary judgment. Trial Court Rule 1925(a) Opinion, 9/11/17,
at 2 (unnumbered). Specifically, the trial court determined
that the Note and Mortgage were valid and that Premier
unambiguously and unconditionally promised to repay the Note
in full under the terms of that document. Id. at 3
(unnumbered). The trial court found that various defaults or
events of default under the loan documents had occurred, as
reflected in correspondence from Wells Fargo's counsel
dated October 29, 2013 and December 4, 2013. Id. In
light of the events of default, Wells Fargo advised Premier
that it was accelerating Premier's obligations under the
Note. Id. In response to a complaint in mortgage
foreclosure filed by Wells Fargo against Premier in the
United States District Court for the Middle District of
Pennsylvania, Premier sold the real property subject to the
mortgage. Those proceeds were accepted by Wells Fargo but
were insufficient to satisfy the Note in full. Consequently,
the loan was determined to be in default and Wells Fargo had
standing to enforce Premier's obligations under the Note
by virtue of an assignment. Id. at 3-4 (unnumbered).
The trial court concluded:
Based on this [c]ourt's determination the loan and
documentation were valid, the loan was in default, and that
the trustee was the appropriate person to [enforce] the
obligation under the note. As such there remains no material
issues of material fact and summary ...