Deutsche Bank Trust Co. v. Kravitz, S. (memorandum)

Annotate this Case

Download PDF

J-A15002-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 DEUTSCHE BANK TRUST COMPANY AMERICAS IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. STEPHEN KRAVITZ Appellant No. 1911 EDA 2013 Appeal from the Order June 3, 2013 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2011-02466 BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J. MEMORANDUM BY PANELLA, J.: FILED JULY 02, 2014 Appellant, Stephen Kravitz, appeals from the order entered June 3, 2013, by the Honorable Wallace H. Bateman, Court of Common Pleas of Bucks County, which entered summary judgment in favor of Appellee, Deutsche Bank Trust Co The trial court summarized the relevant facts and procedural history as follows. On February 8, 2007, Stephen F. Kravitz executed a Mortgage to a Nominee for GMAC Mortgage, LLC which mortgage is recorded in the Office of the Recorder of Bucks County, in Mortgage Book No. 5347, Page 38. The mortgage was for property located at 43 Steeplechase Drive, Holland, Pennsylvania. The mortgage was assigned to [Appellee, Deutsche Bank]. The Assignment of Mortgage was recorded on February 17, 2011 in Book No. 6657, Page 2230. On March 15, 2011, [Deutsche Bank] filed a complaint in mortgage foreclosure, alleging that [Kravitz] defaulted under the mortgage. Following a conciliation J-A15002-14 conference where no agreement could be reached, [Kravitz] filed preliminary objections to the complaint, which the trial court overruled. On June 27, 2012, [Kravitz] filed an answer to the complaint, generally denying the averments alleged in the complaint, along with a new matter. On July 13, 2012, On December 21, 2012, [Deutsche Bank] filed a motion for summary judgment. As part of their motion, [Deutsche Bank] attached various documents and the affidavit of GMAC, Mortgage, LLC Authorized Officer, Thomas E. Kennedy. In his affidavit, Kennedy stated that [Kravitz] defaulted on the mortgage in April of 2010 and owed a principle balance of $590,592.66. [Kravitz] filed his response on January 21, [2013], arguing that the rule in Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932) prohibited the entry of summary judgment in favor of [Deutsche Bank]. This [c]ourt granted uly 2, 2013. [Kravitz] then filed this timely appeal. Trial Court Opinion, 8/28/13, at 1-2. On appeal, Kravitz raises the following issues for our review: Did the trial court commit an error of law in its grant of summary judgment upon a defective note transfer and mortgage assignment? Did the trial court commit an error of law in its grant of summary judgment upon an inadmissible hearsay testimonial affidavit We review a challenge to the entry of summary judgment as follows. [We] may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary. In judgment, we focus on the legal standard articulated in the summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the nonmoving -2- J-A15002-14 party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013) (citation omitted). In actions for in rem forec debt, summary judgment is proper where the defendant admits that he had failed to make payments due and fails to sustain a cognizable defense to the , 845 A.2d 855, 858 (Pa. Super. 2005); First Wis. Trust. Co. v. Strausser, 653 A.2d 688, 694 (Pa. Super. 1995). Kravitz first argues that Deutsche Bank was without standing to enter judgment in this matter. Pennsylvania Rule of Civil Procedure 2002(a) provides that 2002(a). an action, is the person who has the power to discharge the claim upon which suit is brought and to control the prosecution of the action brought to enforce rights arising under the claims. See Spires v. Hanover Fire Ins. Co., 364 Pa. 52, 58, 70 A.2d 828, 831 (1950), overruled in part on other grounds by Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983). Where -3- J-A15002-14 an assignment is effective, however, the assignee stands in the shoes of the assignor and assumes all of his rights. See Smith v. Cumberland Group, Ltd. assignee is usually the real party in interest and action on the assignment must be prosecuted in his name Wilcox v. Regester, 417 Pa. 475, 480, 207 A.2d 817, 820 (1965). Although Kravitz maintains that the original holder of the mortgage, MERS, did not have the authority to assign the mortgage to Deutsche Bank, he provides no binding authority to support his claim. See argument. As previously noted, the mortgage lists MERS as the mortgagee under the security instrument and as nominee for lender, GMAC Mortgage, LLC. See Mortgage, at 1-2. The mortgage further provides that: This Security Instrument secures to Lender: (i) the repayment of the Loan, and all renewals, extensions and modifications of the agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage, grant and convey and assigns) and to the successors and assigns of MERS, the following described p Mortgage, at 3. Clearly, the security instrument specifically contemplates -4- J-A15002-14 the assigns thereafter.1 the authority to do so is patently without merit. Bank was in some manner defective. The assignment of the mortgage to Deutsche Bank was recorded with the Bucks County Recorder of Deeds on February 10, 2011. Deutsche Bank subsequently filed a complaint in foreclosure on March 15, 2011. In its complaint, Deutsche Bank set forth the date and existence of the mortgage under which MERS, as nominee for ____________________________________________ 1 Union County, Ill. v. MERSCORP, Inc., 735 F.3d 730, 732 (7th Cir. 2013). As the Court explained: Although MERSCORP [the parent company of MERS] is the mortgagee of record, the assignment of a mortgage to it is not substantive. MERSCORP is not the lender; and as it does not pay the assignor for the assignment it does not become the lender in fact it has zero financial interest in the mortgage. In a organization that records, trades, and forecloses loans on behalf of man Mortgage Electronic Registration Systems, Inc. v. Estrella, 390 F.3d 522, 524 25 (7th Cir.2004). The purpose of assigning a mortgage to MERSCORP is merely to enable repeated de facto assignments of the mortgage by successive mortgagees. We call the homeowner's debt to the bank to another financial institution without the transfer being recorded in a public-records office. Id. (emphasis added). -5- J-A15002-14 GMAC Mortgage, LLC, was mortgage holder, and the mortgage had been assigned to Deutsche Bank and recorded as such. See Complaint, 3/15/11 at ¶ 3. We are therefore satisfied that Deutsche Bank sufficiently advised Kravitz of its claim of interest to the subject mortgage and find no defect apparent on the face of the recorded assignment. See, e.g., US Bank N.A. v. Mallory, 982 A.2d 986 (Pa. Super. 2013). Therefore, this claim, too, is without merit. -fold. Kravitz first argues that the trial court erred when it deemed as admitted his general complaint, Deutsch Bank stated the following: 5. The mortgage is in default because monthly payments of principal and interest upon said mortgage due 04/01/2010 and each month thereafter are due and unpaid, and by the terms of said mortgage, upon failure of mortgagor to make such payments after a date specified by written notice sent to Mortgagor, the entire principal balance and all interest due thereon are collectible forthwith. 6. The following amounts are due on the mortgage: Principal Balance $482,970.62 Interest $27,861.81 3/01/2010 through 12/08/2010 Late Charges through 12/08/10 $1398.40 Property Inspections/Property Preservation $435.00 TOTAL $512,311.33 Complaint, at ¶¶ 5-6. and the assignment of the mortgage to Deutsche Bank. See Answer at ¶3. -6- J-A15002-14 Kravitz further denied defaulting on the payment obligation under the 5. Denied. Said averment is a conclusion of law to which no response is required. By way of further answer, after reasonable investigation Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and therefore, said averment is expressly denied and strict proof thereof is demanded at the time of trial. 6. Denied. Said averment is a conclusion of law to which no response is required. By way of further answer, after reasonable investigation Answering Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and therefore, said averment is expressly denied and strict proof thereof is demanded at the time of trial. Moreover, postproof thereof is demanded at the time of trial. Answer, at ¶¶ 5-6. In First Wis. Trust. Co. v. Strausser, 653 A.2d 688, 694 (Pa. Super. complaint regarding the total amount due by denying the allegation as a conclusion of law. See 653 A.2d at 694. The panel noted that such an Id. Thus, the was proper. Here, as in Strausser allegation by denying it as a conclusion of law. While it is true that mere conclusions of law require no denial because they are deemed to be denied, -7- J-A15002-14 clude assertions of fact that require specific denials. The assertion that Kravitz is in default of his mortgage is indeed a conclusion of law to which Deutsche Bank needs factual support and to which Kravitz need not reply. However, Deutsche Bank also makes factual assertions that Kravitz failed to make timely payments starting in April 2010. Such assertions of fact are well within the knowledge of the mortgagor. See, e.g., New York Guardian Mortg. Corp. v. Dietzel, 524 A.2d 951, 952 (Pa. Super. 1987). Because Kravitz is the only party, aside from Deutsche Bank, to have the specific knowledge to refute the assertion, his general denial amounts to an admission under Pa.R.C.P. 1029(b). Likewise, the averments in paragraph 6 are entirely factual. Thus, Kra contained therein must also be considered admissions under Pa.R.C.P. 1029(b).2 As we find that Kravitz effectively admitted to all of Deutsche ing his failure to make payments under the mortgage and the amounts due and owing, we agree with the trial ____________________________________________ 2 To the constitute a denial under Pa.R.C.P. 1029(c), our case law has made it clear that a party cannot rely on Pa.R.C.P. 1029(c) to excuse the failure to properly admit or deny factual allegations when, as here, it is clear that the pleader must know whether a particular allegation is true or false. See Dietzel, 524 A.2d at 952; Cercone v. Cercone, 386 A.2d 1, 4 (Pa. Super. 1978). -8- J-A15002-14 mary judgment in favor of Deutsche Bank. Lastly, Kravitz argues that summary judgment was improperly entered based solely on the testimonial affidavit attached to the complaint in violation of the rule announced in Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932). See Nanty-Glo, summary judgment may not be entered where the moving party relies exclusively on oral testimony, either through testimonial affidavits or deposition testimony, to establish the absence of a genuine issue of material fact except where the moving party supports the motion by using admissions of the opposing party First Philson Bank, N.A. v. Hartford Fire Insurance Co., 727 A.2d 584, 587 (Pa. Super. 1999) (emphasis added) (citation omitted). As noted above, eral denials to the specific factual allegations in Deutsche Nanty-Glo does not preclude the entry of summary judgment in this case. Based on the foregoing, we agree with the trial court that there exists no genuine issue of material fact such that the entry of summary judgment was proper. Accordingly, we affirm the order of the trial court. Order affirmed. Jurisdiction relinquished. -9- J-A15002-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/2/2014 - 10 -

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.