United States District Court, E.D. Pennsylvania
CHUONG VAN TRAN, et al.
SN SERVICING CORPORATION
case, the plaintiffs, Chuong Van Tran and Tuyet Hong Nguyen,
have filed an amended complaint seeking class certification
for alleged violations of the Fair Debt Collections Practices
Act (“FDCPA”), 16 U.S.C. § 1692 et
seq. Plaintiffs contend defendant SN Servicing
Corporation (SNS) violated the FDCPA by sending certain
written notices of its intent to initiate foreclosure
proceedings when MV051, LLC never intended to foreclose
because it is a junior lienholder.
their first complaint, Plaintiffs also charged MV051, the
holder of a second mortgage on their residence with the same
violations. MV051 filed a counterclaim seeking foreclosure.
On September 20, 2017, I entered a stipulation and order
dismissing the FDCPA claims against MV051, but allowing it to
pursue its counterclaim for foreclosure in this action.
me is a motion for summary judgment filed by MV051 seeking
foreclosure of Plaintiffs' residence. For the reasons
that follow, this motion shall be granted.
contends it is entitled to summary judgment based on the
following assertions of uncontested facts.
purchased their home in Holland, Pennsylvania, in January
2005. They had a first mortgage on the property with
GreenPoint Mortgage Funding, Inc., in the amount of $228,
000. On September 2, 2005, Plaintiffs obtained a second
mortgage (the subject of this litigation) secured by a
mortgage on the Holland property. A promissory note and
mortgage were recorded on November 10, 2005, in the office of
the Recorder of Deeds of Bucks County, Pennsylvania. The note
indicates the mortgage was in amount of $100, 000, with an
interest rate of 6.75%, and 180 payments were to be made in
the amount or $885.07. Ans. and Counter Cl., Exh.
second mortgage has been reassigned several times. First,
from Federal Deposit Insurance Corporation, in its capacity
as receiver for Earthstar Bank to SFR Venture 2001-1, LLC;
then to Mortgage Electronic Registration Systems, Inc.; and
finally to MV051 on May 24, 2016. The original promissory
note, mortgage, and the subsequent recorded assignments of
the mortgage are attached as exhibits to the counterclaim.
MV051 asserts Plaintiffs are in default, and at the time of
the filing of the answer to the amended complaint and its
counterclaim, Plaintiffs owed in excess of $80, 000, plus
accruing interest, late fees, legal costs, and attorney's
acknowledge in their amended complaint that they defaulted on
the second mortgage “at some point after September of
2005” and “remained in default since January of
2012.” Am. Cmpl. ¶ 16. Mr. Tran's
deposition testimony confirms that the mortgage is in
default, that he hadn't made any payments since
“last year, ” and that payment was returned to
him. Mot. For Summ. Judg., Exh. 1, Tran Dep. at
31-32. Mr. Tran also testified that he did not know when he
had made any payments before this last one or what the
balance of the mortgage was, but he agreed it was
approximately $75, 000. Id. at 32-33. Mrs. Nguyen
confirmed her husband's testimony.
also acknowledge that they received notice from MV051,
through its loan servicer, SNS, that their loan was in
default. This notice is required under Pennsylvania law
before a lender can foreclose on a property and is commonly
referred to as an Act 91 letter. See Pennsylvania
Loan Interest and Protection Law, 41 P.S. §§ 400
et seq., and Homeowner's Emergency Mortgage Act,
35 P.S. §§1680.401c et seq.
has been contested by Plaintiffs is the amount currently owed
MV051 on the mortgage and the reliability of its business
A. Fogelman, the corporate designee for MV051, testified at
deposition that the principal balance due on the note is $75,
229.56. As of the date of his deposition, inspection fees due
on the note were $146.45, and late fees were $2, 493.60. He
was unable to testify as to the prior lienholders'
business records, only that MV051 relied on what was reported
to it as the owed at the time the note was acquired to
determining the current balance due on the mortgage.
Standard of Review
standard of review for a motion for summary judgment is well
established. I must consider the evidence in a light most
favorable to the non-moving party. If there is no genuine
issue as to any material fact and the moving party is
entitled to a judgment as a matter of law, summary judgment
is appropriate. An issue is genuine only if ...